Hartwig v. Chicago & Northwestern Railway Co.

Oetost, J. This case was presented to the court, by the learned counsel on both sides, mainly on the question of the negligence of the company in the location, construction and condition of its cattle-guard at' the place of the accident. We think that this question was quite immaterial and of no consequence, in view of the evidence and instructions applicable to another and vastly the more important question, of the negligence of the company in stopping the train with the passenger car north of and beyond the cattle-guard so constructed and situated, whether properly so or not. It maybe conceded that the cattle-guard was properly constructed and situated, and kept in proper condition, and yet, if it be clearly proved that the company was negligent in stopping the passenger car [363] beyond the cattle-guard under the circumstances and at the time, and that the plaintiff was not negligent in attempting to go aboard of the car where it was stopped and in passing over the cattle-gnard, and the jury can be presumed to have passed upon the question, the verdict ought not to be disturbed. The undisputed evidence in this respect, and relating to this question, proves a case in principle like several cases which have been decided by this court, and in which the verdict'has been sustained. The instruction applicable to this question asked by the defendant’s counsel, was: “If the plaintiff was informed on the night in question that the train would not be hauled up to the depot platform to allow him to get on the train, he had no right to take another way of getting on the cars, and put himself in peril; and if he did, and was hurt, he cannot hold the company legally liable for such injuries.” This instruction, in this form, was refused, but the court gave it with the addition of these words: “if you find he put himself in such peril.” These additional words were, no doubt, intended by the court as a qualification of the instruction, and to mean, “if you find he Tmowmgl/y put himself in such peril,” or if he knew or had reason to apprehend the peril and danger. If it does not mean this, it can mean nothing but a repetition of the instruction already refused, and this ought not to be presumed against the consistency of the court, and when the instruction asked, without such qualification, was clearly erroneous. The following general instruction was given: “You must not only find that the defendant is guilty of negligence, in order to find for the plaintiff, but you must find that the plaintiff did not contribute to the negligence himself.” By this instruction the jury was left to find the negligence of the company from any proper evidence. It was in evidence that on the night in question, about half past 9 o’clock, when it was very stormy, dark, raining and snowing, the plaintiff went to the depot at the village of Juneau, for the purpose of [364] taking tlie caboose car at the rear end of the company’s freight train for Watertown, his residence. The train stopped further north than usual, with the caboose car two car-lengths north of the cattle-guard, and several rods north of the depot platform, and the cattle-guard was constructed across and over both tracks of the road, and between the same, and partly uncovered. The plaintiff asked the night-watchman, who was at the depot, whether he had to walk that far back to get on the caboose, and the watchman replied, “I guess you have,” and expressed the opinion that the train would not be hauled up and stopped at the platform for passengers to get aboard. The plaintiff then started towards the caboose, and on his way met the conductor with a lantern accompanying two lady passengers, who had just left the caboose where it stood; and nothing was said to him by the conductor*, and he passed on; and before he reached the caboose, he suddenly and unexpectedly walked and fell into the open cattle-guard between the tracks, which was of considerable depth, and was injured. ITe was put on the caboose, without hauling up to the platform, and carried to Watertown. The plaintiff had been in the habit of taking this same train with the caboose some distance north of the platform, but had never taken it standing where he did on this night, north of the cattle guard; and it had not been stopped at this point except for about ten days before; and the plaintiff had never noticed and had no knowledge of the situation and condition of the cattle-guard, arid did not know on this occasion that the caboose had been stopped north of it. These facts present a much stronger case against the company than many cases decided by this court, in which the verdict was not disturbed. In Delamatyr et al. v. The Milwaukee & P. du Ch. Railroad Co., 24 Wis., 578, Mr. Justice Cole uses the following language, applicable to this case: “ Of course it was the duty of the company to afford passengers reasonable facilities for alighting from the cars, both by a reasonably safe platform, [365] and by stopping the traim, in such a manner that they may avail themselves of it withoiot unnecessary exposure.” In that case the plaintiff was told by the brakeman, after the train had stopped in an improper place, to get off where, in attempting to do so, she was injured. In Davis v. The C. & N. W. Railway Co., 18 Wis., 175, the cars were not stopped at Watertown depot sufficiently long for the plaintiff to get off safely;-and when attempting to do so he was injured; and the defendant was held negligent, and the plaintiff not. In Curtis et ux. v. The Detroit & Milwaukee Railroad Co., 27 Wis., 158, the plaintiff attempted to get on the sleeping car in the night, where it had temporarily stopped, before reaching the platform, in such a manner as to lead passengers to . suppose it would not again be stopped and in the proper place, and was injured in the attempt by the sudden starting of the train. The plaintiff was held not guilty of want of ordinary care, and the company was held liable through negligence. In a late case of Quaife et ux. v. The C. & N. W. Railway Co., 48 Wis., 513, the plaintiff attempted to get aboard of the ladies’ car, which had been stopped before it had reached the platform, and. walked off the platform in the dark, and was injured. Instructions in respect to the duty of the company to haul up to the platform, or to have lights, and to furnish other means to protect passengers, and to take proper precautions against accidents, in such a place, were spoken of approvingly by Mr. Justice Tavloe in his opinion; and there was scarcely a question of the plaintiff’s ‘ right to recover upon the facts, raised in this court, by exception to such instructions or otherwise. The jury must be presumed to have passed upon these facts, and found the company negligent and the plaintiff not, by their general verdict for the plaintiff. There can be no question that the company was careless and negligent in stopping [366] this train where it did for passengers to get off and on, and where to do so required them to pass over in the dark such a dangerous place as this open cattle-guard, without precaution or warning; and in stoppiug the passenger car in such a place, and leading passengers to suppose they must get on there or not go on the train at all at that time, and leading them to suppose that the way .to the passenger car was clear and safe and without danger. The verdict for the plaintiff in such a case could not be disturbed, without overruling many cases in this court, and violating the most obvious principles of law. The question as to the degree of certainty of evidence in such a case, was distinctly passed upon in the last above case by this court, and it was held that evidence beyond a doubt in a civil action was not necessary. This disposition of the case renders it unnecessary to pass upon the question as to whether such an action can be revived after judgment for the purpose of an appeal. By the Court. — The judgment of the county court is affirmed, with costs.