Wickert v. Wisconsin Central Railway Co.

TimliN, J. The question presented by this appeal is whether the circuit court properly directed a verdict for defendant. In order to make out a case of actionable negligence it must appear that the person sought to be charged therewith had knowledge that his act or omission complained of was likely to cause injury to some person or thing. This knowledge may be either actual or imputed. Knowledge of this dangerous quality of the act or omission in question is or may be imputed in a great number of instances, among them when there is a duty to know, and also when a person of ordinary care and prudence under the same or similar circumstances in the exercise of ordinary care ought to have known of this likelihood. Hasbrouck v. Armour & Co. 139 Wis. 357, 121 N. W. 157. Like other subjects of legal investigation, these may be questions of fact, questions of law, or mixed questions of fact and law in a given casa The un-contradicted evidence in the instant case establishes the following: The sister and the niece of plaintiff, with the three children of this niece, were passengers waiting on the depot platform for the arrival of the train which they were about to board. The plaintiff and her grown-up daughter accompanied these passengers for' the purpose of seeing them off. The passenger train in question, having one passenger coach 377 nest behind the smoking car, stopped at the station, the passengers, of whom there was quite a large number alighting at this station, were descending the steps at the front end of this passenger coach, and the conductor was assisting these passengers to descend, standing with his face toward the descending passengers and toward the passenger coach. The group of seven, including the said passengers about to embark and the plaintiff and her daughter, while the conductor was so engaged stood behind him, said their farewells, and exchanged parting kisses. The plaintiff’s niece first, and then plaintiff’s sister, ascended the steps of the smoking car to the platform of that car, from which point the niece called out to plaintiff, “Aunt, bring up the baby and the satchel.” The niece then went into the passenger car and took a seat. Plaintiff’s sister remained near the door of the passenger car. Plaintiff ascended the steps of the smoking car, crossed the platform of this car and the platform of the passenger car to where her sister was standing, gave the satchel to the latter, turned and began to descend the steps of the passenger car, and had reached the second step in her descent when the train began to move out moderately, whereupon she became dizzy and soon fell from the steps sustaining injuries. When the plaintiff was ascending the steps leading to the platform of the smoking car and after she had reached that platform the passengers from the other car were still descending the steps of that car, but after she delivered the satchel to her sister and started to descend there was no other person descending the steps and no conductor in sight. The conductor, after looking along his train and seeing no one attempting to board the train or to descend from either car, called out, “All aboard,” and gave the signal to the engineer to pull out. The engineer rang his bell and started his engine and moved out. The conductor from the place at which he stood when he gave the signal to start, as fixed by his un-controverted testimony, could not see the plaintiff because 378 sbe bad not at tbat time reached tbe second step in ber descent. Tbe signal must bave preceded tbe starting of tbe train, and tbe signal and tbe starting could not bave been simultaneous. Tbe plaintiff tarried somewhere on either car platform before attempting to descend. Neither tbe conductor nor the brakeman bad any actual knowledge tbat tbe plaintiff was upon tbe car platform with tbe intention of alighting therefrom before tbe train started or tbat sbe was not a passenger, and neither observed tbe leavetaking, beard tbe farewells, or saw tbe kisses on tbe depot platform, or beard tbe call, “Aunt, bring up tbe baby and the satchel.” Tbe plaintiff, however, contends that tbe leavetaking, farewells, and kisses on tbe depot platform occurred so near to tbe conductor tbat be might, notwithstanding bis denial, bave beard them, or tbat in the exercise of ordinary care be ought to bave observed them, and consequently to bave known tbat tbe plaintiff was not a passenger, but intended to alight from tbe car platform before tbe train started, and tbat tbe conductor was therefore negligent in giving the signal to start without first ascertaining whether tbe plaintiff bad descended. If we assume for tbe purpose of this case and as most favorable to appellant tbat, notwithstanding tbe denial by tbe conductor and by tbe brakeman tbat they observed these farewells or knew tbat the plaintiff was not a passenger, there still was an issue of fact involving tbe question whether they bad actually observed or whether they ought to bave observed tbe conduct of tbe plaintiff and tbe other passengers, still we think that tbe real probative effect of such conduct was not as claimed by the appellant. If farewells and kisses were exchanged on tbe depot platform, the fair inference would be that there tbe parting took place, and tbat those who remained on tbe platform were tbe friends who bad taken leave, and those who boarded tbe train thereafter were tbe departing passengers. Tbe daughter of plaintiff remained on tbe depot platform. All other members of tbe group ascended tbe 379 steps of the smoking car. The plaintiff ascended last and in response to a request to bring up the baby and the satchel, but there was nothing in the request to inform any one who overheard it that she was not a passenger. It is a fair inference, although perhaps not a very strong one, that all those who board a train stopped at a station for .the reception of passengers are passengers. In the absence of evidence to the contrary the trainmen are justified in so presuming. . .We find no evidence here of any indications to the contrary. There was therefore no evidence upon which the jury would have been justified in finding that the defendant through its agents and servants, the conductor or brakeman, knew or ought to have known that the plaintiff was, at the time the conductor gave the signal to start, upon the train otherwise than as a passenger outward bound. There was therefore no negligence in starting the train. The case in this respect is ruled by Griswold v. C. & N. W. R. Co. 64 Wis. 652, 26 N. W. 101. So that, even conceding appellant’s contention that plaintiff was rightfully on the train by customary invitation and that defendant owed her the duty of ordinary care, still there was no want of ordinary care within the general rule first herein stated. It follows that the judgment of the circuit court must be affirmed. By {he Cowrt. — Judgment affirmed.