Walters v. Chicago & Northwestern Railway Co.

89 N.W. 140, 113 Wis. 367, 1902 Wisc. LEXIS 58

• Court: Wisconsin Supreme Court
• Decided: February 18, 1902
• Status: Published

Opinions

Winslow, J.

A verdict for the defendant was directed in this case because, in the opinion of the trial court, (1) there was no evidence of negligence on the part of the railway company, and (2) the evidence conclusively showed contributory negligence on the part of the plaintiff. These claims will be considered in their order.

1. In granting the motion, the trial judge said:

“It is without dispute that the passengers had alighted from the two coaches, so that the conductor was warranted in concluding that no more passengers were coming to alight from the train at the time he gave the signal to start, as there was none in sight upon the vestibule or upon the steps from which he could have known that other passengers were to get off. I think there is nothing to show that he was guilty of carelessness in giving the signal for that train to start at that ■time.”

The idea in the mind of the trial judge evidently was that if the conductor, standing on the platform, was warranted in supposing that all the passengers who wished to get off at Oregon had got off when he gave the signal to start the train, then the company was not negligent. It is very manifest that the court applied the wrong test. It may be that any reasonable person standing on the platform where the conductor did would have been of the opinion that all who desired to leave ■■at Oregon had done so, but this is not sufficient. If a reasonable time had not in fact elapsed to enable all passengers to get off who wished to do so, it was negligence to start the train., It is the duty of a passenger carrier to stop its train at stations a sufficient length of time to enable passengers to get on or off in the exercise of ordinary diligence, and unless it does so it is guilty of negligence. 1 Eetter, Carriers, § 66, and cases cited. This proposition was, in substance, laid down by this court in Davis v. C. & N. W. R. Co. 18 Wis. 175, and has not been modified since that time. It was there said that it was the duty of a railway company to stop the train at the station where a passenger wishes to alight a suitable and reasonable time to enable him t'o do so, “and, if they did not, they were certainly guilty of carelessness and inattention to the lives and safety of the passengers desiring to leave the train at that place.” The authorities in support of this proposition are so numerous that it is embarrassing to attempt to name them. They will be found cited in Mr. Fetter’s work in the note to the section above cited, and in a note upon page 576, 5 Am. & Eng. Ency. of Law (2d ed.). Ordinarily, the question whether a reasonable length of time was allowed or not is a ■question for the jury. It will depend largely upon the surrounding circumstances, — whether there are few or many passengers, whether the cars are crowded or not, whether the landing place is easy or difficult, whether the passenger is vigorous and active or feeble and incumbered with parcels, and' many other circumstances which will occur to the mind. In the present case there were many circumstances present which evidently had a tendency to delay the passengers in alighting; from the train. It was crowded. The aisles were full of people standing up. Locomotion through the aisle was necessarily slow. The front door of the car seems to have been locked, so that the plaintiff and his companion,' through no-fault of their own, lost valuable time in endeavoring to get out. Altogether the evidence was ample to go to the jury upon the question whether the train stopped a sufficient length1 of time to enable passengers using ordinary diligence to get off. in safety.

2. The question of contributory negligence was also one for the jury. It is well settled that an adult who unnecessarily steps from a train which he knows to be in motion is guilty of’ contributory negligence as a matter of law. Brown v. C., M. & St. P. R. Co. 80 Wis. 162. But in the present case the-plaintiff testifies that he did not know the train was moving: when he stepped off. While such a statement might well seem incredible if made twenty-five years ago, it is not so now. It is matter of common knowledge that vestibule trains, with improved couplers, and running on a first-class roadbed, frequently start so noiselessly and imperceptibly as to attract no notice, especially when the outside darkness prevents the passenger from noticing the fact by the use of his eyes. In the-present case both the plaintiff and the witness Ilanan testify that they did not know the train was in motion, and we cannot say, as matter of law, either that this testimony is incredible, or, that they were conclusively guilty of negligence in not knowing the fact. There is evidence that,the conductor met the two men in the vestibule, and said, in substance, to them,, to stop a moment, and he would stop the train. Of course,, if the plaintiff heard this, or ought, in the exercise of ordinary care,' to have beard it, before be stepped from tbe train, be would be chargeable with knowledge that tbe train was in motion; but tbe testimony is quite conflicting on tbis point. Tbe plaintiff says no one spoke to bim, tbat be was aware of. Tbe witness Hanson testifies tbat Hanan spoke before tbe conductor, and said, “Hold on, John!” while Hanan himself says tbat just as be spoke to .Walters be was stepping off from tbe train. Altogether it cannot be said tbat contributory negligence was proven as matter of law. Tbe plaintiff-was entitled to a reasonable time to leave tbe car under tbe circumstances. His testimony and tbat of Hanan tends to show tbat they pro-needed with reasonable expedition in making their way out. The court cannot say, under tbe evidence, tbat tbe plaintiff must have known tbat tbe train was in motion, nor tbat tbe plaintiff must have beard tbe remark of tbe conductor or Hanan before be stepped off. Tbe issues in tbe case , should have gone to tbe jury.

By the Court. — Judgment reversed, and action remanded for a new trial.