Himstreet v. Chicago & Northwestern Railway Co.

Eschweiler, J. The plaintiff was lawfully on the defendant’s premises at the time of the injury while expecting the arrival of her son as a passenger on one of defendant’s trains. While she occupied such a position to the defendant company it owed to her the duty of constructing and maintaining the premises in a reasonably safe condition, as was correctly said by the court in his charge to the jury. Otto v. M. N. R. Co. 148 Wis. 54, 134 N. W. 157; Banderob v. W. G. R. Co. 133 Wis. 249, 113 N. W. 738. There was no error, therefore, in refusing to instruct the jury, as requested by the defendant, that she was there as a mere licensee. That there was no definite time or particular train fixed for her son’s arrival did not alter her position; she was in good faith reasonably expecting him at the time of the injury. [74] We are satisfied from a consideration of the evidence in this case and the surrounding situation and circumstances that the court was correct in its first view of this case when submitting to the jury both questions as to negligence, and that the evidence was sufficient to support the findings made by the jury. It cannot be said as a matter of law that the situation then provided by the defendant was such that the plaintiff was making an improper use of the window, it being so located that it gave a convenient view of the incoming trains, or that some such use ought not to have been anticipated by the defendant. The combination made there of the window, the door swinging in and against the radiator, which was placed just at the top of the long stairway leading into the subway and squarely in front of the window, may well be held to be such a combination as would properly permit the jury, within the wide field it has for its province, to say that persons chargeable with such a combination ought reasonably to have anticipated that some injury might occur to a person while properly using the window. Neither can we say as a matter of law that even though the stairway was well lighted and in plain sight the presence of such stairway in proximity to the window could not, within the field of ordinary care, have been overlooked or momentarily forgotten by a stranger to the premises and one whose attention was drawn to what was going on outside of the window, as in plaintiff’s case. We think the questions here, both of defendant’s negligence and plaintiff’s contributory negligence, are disposed of adversely to defendant’s contention and contrary to the view that was finally taken by the trial court by a case which had not been decided at the time of the trial of the case at bar. Hommel v. Badger State I. Co. 166 Wis. 235, 165 N. W. 20. The defendant suggests that error was committed on the trial by the admission of certain evidence with reference to accidents occurring on these stairways prior to the one [75] plaintiff received, but we are satisfied from an examination of the entire record on that subject that there was nothing-done in that respect requiring a change' in the result arrived at here, or further comment. By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment for the plaintiff upon the verdict of the jury.