Coombs v. Southern Wisconsin Railway Co.

SiebeckeR, J. The defendant company had adopted the following as one of its regulations for the conduct of its business: “The conductor shall request passengers to enter the car and move forward, endeavoring to keep the rear platform clear at all times.” Mr. Montgomery, vice-president and superintendent, testified that this rule was promulgated and enforced to promote safety of passengers and efficiency in service in the conduct of the business. An orderly and expeditious management is essential to carry on a street-car business and the requirements imposed on passengers by this [114] rule tend to promote these objects. Yorton v. M., L. S. & W. R. Co. 54 Wis. 234, 11 N. W. 482; Bass v. C. & N. W. R. Co. 36 Wis. 450. The provisions of the regulation are therefore proper and reasonable and passengers must conform therewith under all circumstances and conditions when its requirements can be reasonably enforced. The question arises, Was the plaintiff justified in refusing to comply with the-conductor’s attempted enforcement of the rule at the time here in question? It was held in the Yorton Case that the conductor in charge of a railroad passenger train has the right to eject a passenger from the car when such passenger refuses to comply with a reasonable regulation that is sought to be enforced for the proper, safe, and efficient conduct of the business. Responsibility for the enforcement of such regulation must rest with those who are in control of the business. In this case such duty was imposed on the conductor who was in charge of the car, and it devolves upon passengers to comply with the conductor’s enforcement of the rule if they can reasonably do so. “In such cases, as in others, it would not comport with the comfort and convenience of the passengers, nor always with their safety, for some of them to assert their rights with a strong hand. And the safety and comfort of the passengers generally are not to give way to the safety or convenience of one or of a few.” Bass v. C. & N. W. R. Co. 36 Wis. 450, 462. It is plain that the conductor of the street car in question was vested with the authority of the company to enforce the provisions of this regulation and that it was incumbent on plaintiff to comply with the conductor’s request to step into the car, unless the facts and circumstances of the case show that he could not do so. The trial court submitted the inquiry to the jury whether the plaintiff “ought, as a reasonably careful and prudent person, to have entered the car” when the conductor requested him to do so. This direction to the jury is the equivalent of vesting the plaintiff with the right to determine whether or not ordi [115] nary care and prudence required Rim to comply with the regulation under the facts and circumstances, and runs counter to the right and authority of the conductor to enforce the regulation. The facts and circumstances shown by the record did not justify plaintiff in refusing to comply with the request of the conductor to step into the car. It appears without contradiction that the car in question had an inside .aisle capacity of standing room for at least thirty passengers and that at the most not to exceed fifteen passengers occupied this space when plaintiff refused to comply with the regulation. It also appears that the four passengers who entered the car with the plaintiff readily passed into the aisle and that other passengers entered the aisle immediately after plaintiff refused to comply with the conductor’s request and occupied room which had not been occupied by passengers leaving the car. It is obvious that there was standing room for plaintiff in the aisle of the car when the conductor requested him to step in. Under the conditions it was his duty to comply with the conductor’s request or leave the car, and his wilful refusal to do either authorized the conductor to remove him from the car, and the attempted ejection under the circumstances was not an unlawful act on the part of the conductor. It is manifest that the conductor wholly failed to use sufficient force to overcome plaintiff’s resistance and that plaintiff made no case for a wanton and reckless assault upon him. It is considered that the evidence fails to establish a -cause of action and that the complaint must be dismissed. By the Gowrt. — The judgment appealed from is reversed, and the cause remanded to the circuit court with direction to award judgment dismissing plaintiff’s complaint.