Tolleman v. Sheboygan Light, Power & Railway Co.

Barnes, J. The complaint charged that the defendant was negligent in not supplying sufficient seating capacity, in consequence of which plaintiff was obliged to stand on the step of the rear platform of the car; that defendant was negligent in placing the poles which supported the trolley wires too close to the track; and that plaintiff was pushed outward by the crowd on the rear platform swaying against him, owing to the motion of the car, and was injured hy coming in contact with one of the trolley poles. The jury found that the defendant was negligent in placing the trolley pole as close to the track as it was placed, but in effect found that this negligence was not the proximate cause of plaintiff’s injury. The court submitted three other questions to the jury bearing on the negligence of the defendant, and in answer thereto the [202] jury found that in the exercise of ordinary care the conductor should (1) have discovered and removed plaintiff from the car step before the car started; (2) that the conductor should have informed plaintiff before the car started that he could not obtain a seat; and (3) that after the car started the conductor should have discovered the plaintiff on the step and should have removed him therefrom before he was injured. The jury found that each .of these alleged negligent acts was the proximate cause of the injury. No amendment of the complaint was asked or allowed, and the appellant asserts that it .was error to permit a recovery on a charge of negligence not relied on in the complaint. If the pleader had any intention of charging these acts of negligence, he did not make a very happy use of language to express such intent, and under the very liberal rules that have been adopted for the construction of pleadings it is difficult to read, out of the complaint any charge of negligence against the conductor, unless it is found in the averment that defendant failed to furnish plaintiff with a seat, something that defendant admittedly could not do without depriving some other passenger of the seat which he occupied. It has often been held that a defendant in a personal injury action is entitled to know what specific act or acts of negligence the plaintiff seeks to charge him with, so that he may prepare his defense. Odegard v. North Wis. L. Co. 130 Wis. 659, 616, 110 N. W. 809; Miller v. Kenosha, E. R. Co. 135 Wis. 68, 73, 115 N. W. 355. This rule manifestly operates to promote justice and fair play, and we have no intention of departing therefrom in any case where failure to observe it operates to the disadvantage of the defendant on the trial. In the present case substantially all of the evidence on which these findings were based was given by the conductor, and it is difficult to see how the defendant was injured by failure to plead more specifically the negligent acts found by the jury. The conductor said he was near the middle of the car when it was brought to a stop at station number 7 by [203] tbe motorman to let on passengers, and that he did not leave his.place, but gave the signal to start when some one on the rear platform said all right. No showing was made on the motion for a new trial that defendant had or could produce any additional evidence that would or could have any bearing on these questions, and it was 'not claimed in this court that any such evidence would be forthcoming if a new trial were granted. If the conductor knew of plaintiff’s dangerous position and failed to warn or remove him, he would be guilty of a negligent act. If he did not know, and if the jury might find that he was negligent because he failed to learn, we would have a case of negligence established as to either situation, and nothing that could be presented in the way of additional evidence on the point involved could affect this question. So, while we think that the court should have ordered the complaint to he amended and should have given the defendant an opportunity to make a showing of surprise if it could, before submitting the questions complained of to the jury, it is apparent in the present case that the failure to observe the formality of amending the complaint did not harm the defendant in any way, and for this reason there should be no reversal on this ground. There was sufficient evidence to warrant the jury in finding that the defendant was negligent. The car was apparently overcrowded and so were the vestibules, and passengers were standing on the steps leading into the rear vestibule. It was about 6 o’clock on December 24th, long after dark at this time of the year. In this situation the car stopped to let on still more passengers at station number 7. There were seven passengers to take the car at this place.. Two of them climbed on to the rear fender, and the plaintiff got on the lower step of the car. The other four were unable to crowd on at all. The conductor knew of the proximity of the trolley poles to the track and of the danger therefrom to passengers who might be overhanging the car. He should have known of the pro [204] pensity of the average passenger to crowd on to a car if it were possible to get a foothold, rather than to walk or wait for another car. Under these circumstances, and considering the high degree of care which a carrier must exercise for the safety of its passengers, the jury might well have reached the conclusion that the conductor did not exercise ordinary care when he failed to satisfy himself before starting the car that his passengers occupied safe positions. It is further insisted that plaintiff was guilty of contributory negligence and that it should he so held as a matter of law. The jury having found in favor of the plaintiff, we must assume that the evidence most favorable to him on this issue was found to be time. His evidence in substance was that when he stepped onto the lower step of the platform he supposed he would be able to get into the car and that he had no intention of riding on such step, or of riding at all unless he could get in a safe place on the car, but that the car started immediately after he got on the step and that he was obliged either'to ride in this position or jump off the moving car; that he grasped the stanchions on either side of the steps and was struck before the car came to a stop and before he had any opportunity to get off. It might be mentioned in this connection that plaintiff was evidently no gymnast, being seventy-five years of age. Upon this evidence the jury might acquit the plaintiff of contributory negligence. Lastly, it is argued that there was an intervening efficient cause which occasioned plaintiff’s injury and therefore there can be no recovery. This alleged cause was the surging or swaying of the passengers in the vestibule against the plaintiff, whereby he was pushed outward more than ten inches beyond the side of the car. There is proof to the effect that this swaying was caused by the motion of the car. It is a matter of common knowledge that cars will sway in going around curves, as well as from other causes, and that persons standing therein will be affected by such motion. Surely this [205] is one of the things which would ordinarily occur and which would tend to make a position such as plaintiff occupied extremely dangerous. The pressure against plaintiff was an incident that resulted from the running of the car and not from any independent agency, dissociated from its operation. So we think the rule invoked does not apply to the facts in this case. Jackson v. Wis, Tel. Co. 88 Wis. 243, 60 N. W. 430. This particular element of danger was one which defendant should have seen and provided against. By ike Court. — Judgment affirmed.