Duell v. Chicago & Northwestern Railway Co.

BaRdeen, J. It is conceded by respondent that the- judgment must be reversed because of error in the judge’s charge. The appellant, however, insists that the judgment should be reversed and judgment should be directed by this court in accordance with its motion in the court below. In support [519] of this contention it is argued that the real negligence charged was a defective or improper platform and failure of the brakesman to caution plaintiff at the time she was alighting; that the allegation of want of light was but one of the elements of negligence, put in by way of .inducement, to make effective and operative the alleged defective platform and the failure of the brakeman to assist plaintiff. We cannot agree with this contention. To so construe the complaint would be to exclude several material allegations and do injustice to the plain intent of the pleader. The place where plaintiff was required to alight was alleged to be an improper place, for a number of reasons; that is, defendant was guilty of negligence in several respects mentioned. Among others was the failure to keep the place properly lighted. While alleged conjunctively, we do not think plaintiff was compelled to prove that all of the elements of negligence so alleged concurred in producing the injury she sustained. It was undoubtedly defendant’s duty at least to use ordinary care and prudence to provide and maintain safe alighting places for passengers. McDermott v. C. & N. W. R. Co. 82 Wis. 246, 52 N. W. 85. Its duty may not be fully discharged by providing a reasonably safe platform. If the traveler is subjected to danger in alighting upon a reasonably safe platform by reason of the want of a proper light, the carrier may be liable in damages if an accident occurs. As said in Patten v. C. & N. W. R. Co. 32 Wis. 524: “There is no absolute rule as to what constitutes negligence in a case like this. Whether there was a want of such care and prudence as the company should exercise in a particular case, in not having a light in or about the depot when the plaintiff left the train, is not a pure question of law, but rather one of law and fact.” We think there was enough in the complaint to warrant the court in submitting to the jury the question of defendant’s negligence, arising from want of lights at the place in question. [520] A more important question arises on defendant’s motion to direct a verdict, and motion to correct tbe verdict and for judgment. By reference to tbe special verdict, it will be seen that tbe trial court determined that tbe platform in question was reasonably safe, and that defendant’s brakeman was ready and willing to assist plaintiff as sbe alighted. Tbe jury found tbat the brakeman bad a lighted lantern, and offered to assist plaintiff. They further found tbat tbe platform was not sufficiently lighted to enable plaintiff to alight in safety, which was the proximate cause of plaintiff’s injury. Tbe only evidence to support this conclusion was given by plaintiff, and was of such a character, in view of tbe testimony of other witnesses, as to lead the trial court to remark tbat “it is a pretty thin case to submit to the jury.” The better to understand tbe bearing of the testimony of other witnesses, we quote plaintiff’s statement of the situation: “I did not step on tbe platform, because I could not see it; it was so dark. We bad no light, the brakeman bad no light, and there was no light near tbe train; near tbe depot; near the platform. There was no light whatever on tbe platform there. There were no lights visible anywhere tbat I saw. No light shone where I was when I got off. There was a light in tbe depot, after we got in tbe depot. That was the only light I saw.” Tbe jury have impeached the plaintiff in one respect, by finding that the brakeman was there, ready and willing to assist, and tbat be bad a lighted lantern. That fact is overwhelmingly established by tbe evidence. She is further impeached by tbe fact that there were several other lights on the platform, — one within less than thirty feet from where she was. There is also evidence of another light on the side of the depot near the baggage-room door. The depot was lighted; there having been lights in the men’s waiting room, office, women’s waiting room, and lunch room, — all of said rooms having one or more windows toward the train. The cars were also lighted. Several witnesses testified as to the [521] amount of light; one saying that “it was not very dark;” .another, “The condition was so yon could see the space between tire steps and the platform.” Another witness, who was waiting for the arrival of the train, walked up and down the platform, and said that it was light enough to see to walk. As is usual in such cases, where there is no absolute standard of comparison, the witnesses vary somewhat as to the exact condition. There is, however, no dispute about certain facts which impeach the plaintiffs testimony, and render it absolutely certain she was mistaken. She says there was no light there of any kind. It is absolutely certain, and the jury so found, that tire brakeman stood at the steps with a lighted lantern and attempted to assist plaintiff. No witness testified absolutely as to the amount of light given out by the lantern. It is, however, a matter of common knowledge that, such lanterns throw light some little distance. Summing up the .situation, we have the facts established to substantial certainty that the train was lighted; the depot lighted; several lamps on the platform were lighted, one of which was within thirty feet of the place of the accident; the brakeman was at the place with a lighted lantern; and the testimony of other witnesses that they could see to walk on the platform, and see the space between the step and the platform. Opposed to this is the bare statement of plaintiff quoted. Her statement being impeached by the jury’s finding and other established facts in the case, we think the court should have .granted the defendant’s motion to strike out the answers to questions as requested, and granted the judgment for defendant. The judgment will therefore be reversed, and the cause remanded with directions to grant such motion and to enter judgment for defendant. By the Court. — So: ordered.