Hart v. West Side Railroad

Cassoday, J. There is no bill of exceptions. This being so, the questions presented must be determined upon the pleadings, the special verdict, orders, and judgment mentioned in the foregoing statement. It is contended, in effect, that the gravamen of the complaint is the negligence of the defendant; that the same is put in issue by the answer ; and that such issue has not been determined by the special verdict, and hence that the verdict is defective. Undoubtedly a special verdict is defective which fails to determine all the material and controverted facts put in issue by the pleadings. It is equally true that the form of such verdict is very much in the discretion of the trial court, and that it is not to be regarded as defective merely because such court fails to submit questions not in issue, or not material, or not controverted because admitted upon the trial or established by the undisputed evidence. Heddles v. C. & N. W. R. Co. 74 Wis. 257; Sherman v. Menominee R. L. Co. 77 Wis. 22; Montreal R. L. Co. v. Mihills, 80 Wis. 551. This court has repeatedly sanctioned the propositions apparently contended for by counsel for the defendant, to the effect that, as a general rule, negligenceis to be deduced as an inference of fact from several facts-and circumstances disclosed by the evidence, after their connection and relation to the matter in issue have been traced and their weight and force considered; that in one sense it is a quality attaching to acts dependent upon and arising out of the [490] duties and relations of the parties concerned, and is as much a fact to be found by the jury as the alleged acts to which it attaches by virtue of such duties and relations. Hill v. Fond du Lac, 56 Wis. 246; Kaples v. Orth, 61 Wis. 533, and cases there cited. When such facts and circumstances, though undisputed, are ambiguous and of such a nature that reasonable men, unaffected by bias or prejudice, may disagree as to the inference or conclusion to be drawn from them, then the case should be submitted to the jury. Ibid. But when such facts and circumstances are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the court may take the case from the jury. Ibid. The same rules are applicable to questions of contributory negligence. Hoth v. Peters, 55 Wis. 410, and cases there cited. Hoye v. C. & N. W. R. 62 Wis. 672, 67 Wis. 15. In the case at bar the act complained of is not the mere neglect or failure to perform a duty imposed by law under a given state of facts and circumstances, but consisted in forcibly and intentionally ejecting the plaintiff from the car, under the facts and circumstances found. It appears from the special verdict that the plaintiff was warned to leave the car after it was in motion and before he was ejected, but it does not specifically appear therefrom that the plaintiff was so ejected while the car was moving at a high rate of speed. As indicated in the statement of the case, the complaint so alleges, and in the order for judgment and the judgment the trial court finds that all the allegations of fact in the complaint, beyond those covered by the special verdict, had been proved to be true by the undisputed evidence upon the trial. If such facts were so established by the undisputed evidence, then the court was not required to submit them to the jury; and we perceive no necessity or propriety in having a bill of exceptions for the mere purpose of showing such undisputed facts, when they can [491] just as well, and much better, be made to appear as in the case at bar. W e must therefore regard the facts so found from the undisputed evidence as verities in the case. Thus it appears affirmatively in the record that the plaintiff was forcibly ejected from the car by the conductor while the same was running at a high rate of speed. That such act of the conductor is highly culpable is frankly conceded. This court has recently sanctioned the direction of a verdict in favor of the plaintiff, where it appeared from the undisputed evidence that he was wrongfully ejected from the train. Phettiplace v. N. P. R. Co. 84 Wis. 412. Upon the same principle, it has been held, as a matter of law, that where it appears from the undisputed evidence that a passenger voluntarily and unnecessarily jumps from a rapidly moving train, and is thereby injured, he cannot recover damages therefor against the railway company. Jewell v. C., St. P., M. & O. R. Co. 54 Wis. 610; Brown v. C., M. & St. P. R. Co. 80 Wis. 162. It follows from what has been said that, if the plaintiff is to be regarded as a passenger upon the car, then the fact that he was forcibly ejected therefrom as indicated would, as a matter of law, render the defendant liable therefor in damages.- The plaintiff was, at the time of the accident, less than eleven years of age. He got upon the car by the invitation of the motorman. He was therefore not a trespasser, but lawfully upon the car. This being so, the defendant was charged with the exercise of ordinary care towards him while he so remained upon the car, unless it was relieved therefrom by reason of his peculiar relation to the company and those in charge of the car. The contention is that the complaint states no cause of action; that its allegations are to the effect that the plaintiff got upon the car by the invitation of the motorman, to assist him in his work and “ to aid in operating the street railway, as a volunteer or an invited assistant to the motorman,” and hence that he must be regarded, pro ilia vice, as the co-employee of'the' con [492] ductor and motorman, and hence that the defendant cannot be held liable for the conductor’s misconduct toward him. In support of such contention counsel cites numerous adjudications, and in some of them such volunteer or assistant co-employee was an infant. Assuming that one who, at the request of those in charge of an electric car, temporarily assists in the operation of such car, is to be regarded for the time being as the servant of the company and the co-employee of those so .in charge of the car, still we are constrained to hold that the complaint in the case at bar fails to allege any such relationship. The substance of the complaint is set forth in the foregoing statement. It is not alleged and nowhere appears that the plaintiff had any knowledge of any habit or custom of the motormen to permit boys to ride to the switch for the purpose of turning the same or for any other purpose, nor is it alleged that the plaintiff ever rode upon such car or cars for any such purpose, or at all, nor that he ever turned or aided in turning the switch or operating the car, nor that he got upon the car at the time in question for the purpose of turning or aiding in turning the switch mentioned or any switch or in operating the car. The allegations of the complaint upon the subject all relate to the habit, custom, conduct, and purpose of the motorman and the motormen, except that the plaintiff, with the permission and consent of the motorman and in pursuance of the custom mentioned, got upon the lower step of the front platform for the purpose of riding to the switch. The manifest import of the complaint is that such motormen indulged in such habit and custom of permitting young boys to so ride upon cars “ for the purpose of inducing such boys to turn said switch ” after having reached the same or during the passage to the same. We must hold that the rule contended for has no application to the facts presented by this record. By the Court. — -The several orders and judgment of the circuit court are affirmed.