27 N.W. 147 (Wis. 1886), Hinton v. Cream City Railroad Co.

Citation:27 N.W. 147, 65 Wis. 323
Opinion Judge:LYON, J.
Party Name:HINTON, Respondent, v. CREAM CITY RAILROAD COMPANY, Appellant
Attorney:Winfield Smith, for the appellant, For the respondent there was a brief by Fish & Dodge, and oral argument by Mr. J. T. Fish.
Case Date:February 23, 1886
Court:Supreme Court of Wisconsin
 
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Page 147

27 N.W. 147 (Wis. 1886)

65 Wis. 323

HINTON, Respondent,

v.

CREAM CITY RAILROAD COMPANY, Appellant

Supreme Court of Wisconsin

February 23, 1886

Argued February 4, 1886.

APPEAL from the County Court of Milwaukee County.

The action is to recover damages for personal injuries suffered by the plaintiff through the alleged negligence of the defendant company. The defendant owns and operates a street railroad in the city of Milwaukee, which extends along Farwell avenue, southwest to Ogden street, and thence west on a descending grade along the latter street across Marshall street, which extends north and south across Ogden street. On November 3, 1883, at about 7 o'clock in the evening, the plaintiff entered a car of the defendant on Farwell avenue intending to leave it at Marshall street. The car was stopped at the crossing on the west side of Marshall street, at which point passengers entered it. As soon as it had done so the plaintiff started to leave the car, and just as she stepped upon the platform outside the back door the driver loosened the brake, preparatory to starting the team, and the car lurched forward, throwing her violently to the ground. The thigh bone of one of her limbs was fractured, and her knee was severely injured. The limb will undoubtedly be crippled during her life by reason of the injuries she there received. These are the injuries of which she complains.

The car was provided with two signal bells over the driver's stand, to which were attached straps extending over the seats in the car on either side, within easy reach of passengers. The means of ingress to and egress from the car was a single step in the rear of the car, three and one half feet long and eighteen inches wide, located eleven inches below the car floor and the same distance from the ground. There was a railing at the rear of the car on each side the door, but none at the rear of the step.

The testimony and the rulings of the court on the trial are stated in the opinion. The jury returned a special and general verdict, as follows:

"(1) Did the plaintiff ring the bell, shortly before the car reached Marshall street, with the purpose of alighting from the car? Yes. (2) Did the plaintiff ring the bell shortly after the car came to a halt at Marshall street? Yes. (3) Did the plaintiff, while the car was standing still, rise from her seat to leave the car, and proceed toward the rear door of the car? Yes. (4) Did the driver suddenly start the car on a down grade while the plaintiff was in the act of leaving the car, and before she had alighted therefrom? Yes. (5) Was the plaintiff violently thrown to the ground by reason of the starting of the car, and did she sustain personal injuries by reason thereof? Yes. (6) Was the plaintiff while endeavoring to leave the car guilty of any negligence which contributed to produce the injury? No. (7) Was the defendant while starting such car while the plaintiff was endeavoring to alight therefrom, in the exercise of ordinary care and diligence? No. (8) Did the plaintiff ring the bell when the car was half way between Astor street and Marshall street? Yes. (9) Did the plaintiff remain seated at Marshall street, after the car stopped, before arising to leave, and before others got into the car? Yes. (10) Did the plaintiff have a reasonable time to leave the car at Marshall street before it started? No. (11) Did the driver stop the car at Marshall street so as to let passengers into the car? Yes. (12) Did the plaintiff ring the bell before attempting to leave the car? Yes. (13) Did the witnesses Kortsch and Zigourney attempt to restrain the plaintiff, by seizing her arms, from leaving the car, as testified? No. (14) Had the car then been already standing at Marshall street a time reasonably sufficient for her to leave it? No. (15) Was the car-driver guilty of any negligence which caused the injury to the plaintiff? Yes. (16) What damages has the plaintiff sustained by reason of the injury in question? $ 5,000. (17) Do you find for the plaintiff or for the defendant? For the plaintiff."

A motion on behalf of the defendant for a new trial was denied by the court, and judgment was entered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment.

Judgment affirmed.

Winfield Smith, for the appellant, argued, inter alia, that if a person attempts to alight from a street-car without notice to the person in charge and without his knowledge or his being negligent in not knowing, the company is not liable for injuries received through a fall occasioned by the accidental starting of the car during such attempt. Nichols v. Middlesex R. Co. 106 Mass. 463. Where the driver refused to stop the car upon being asked by a child six and one half years old, that refusal was held not to justify the child in leaving the car at the platform while it is in motion. Cram v. Met. R. Co. 112 Mass. 38. Where the driver of a horse car stops for purposes other than the letting off of passengers, and starts forward without being aware that passengers are getting off, the company is not chargeable with negligence if any one is injured thereby. Chicago W. Div. R. Co. v. Mills, 91 Ill. 39. A new trial should have been granted on account of the remarks made by plaintiff's counsel in his argument to the jury. Brown v. Swineford, 44 Wis. 291-3; Baker v. Madison, 62 id. 146; Comm. v. Scott, 123 Mass. 239; Long v. State, 56 Ind. 182; Coble v. Coble, 79 N.C. 589; Hatch v. State, 8 Tex.App. 416; Cleveland Paper Co. v. Banks, 15 Neb. 20; Rudolph v. Landwerlen, 92 Ind. 34; Chicago & A. R. Co. v. Bragonier, 13 Bradw. 467; Rickabus v. Gott, 51 Mich. 227; State v. Gutekunst, 24 Kan. 252; Earll v. People, 99 Ill. 125; Bedford v. Penny, 25 N.W. 381; McLain v. State, 18 Neb. 154; Hanawalt v. State, 64 Wis. 84; People v. Quick, 25 N.W. 302. It does not cure the wrong that counsel admitted his statement to be unsustained by evidence. Baker v. Madison, 62 Wis. 147; Long v. State, 56 Ind. 182; Hatch v. State, 8 Tex.App. 416. The damages were excessive. Baker v. Madison, 62 Wis. 137; Spicer v. C. & N.W. R. Co. 29 id. 586; Potter v. C. & N.W. R. Co. 22 id. 619; Marshall v. Heller, 55 id. 395; Knowlton v. Mil. City R. Co. 59 id. 282; Goodno v. Oshkosh, 28 id. 303; Houghkirk v. D. & H. Co. 92 N.Y. 219; McLean v. Board, etc. 7 Vict. T. R. (Law), 239; Pierce on Railroads, 396.

For the respondent there was a brief by Fish & Dodge, and oral argument by Mr. J. T. Fish. To the point that the damages were not excessive, they cited Berg v. C., M. & St. P. R. Co. 50 Wis. 419; Cummings v. Nat. Furnace Co. 60 id. 603.

OPINION

Page 148

[65 Wis. 328] LYON, J.

The alleged errors assigned for a reversal of the judgment herein will be considered in their order.

I. Certain rulings of the court upon objections to testimony will first be disposed of:

1. Col. E. A. Calkins was in the car when the plaintiff was injured, and his deposition, taken at the instance of the defendant, was read in evidence on the trial. On motion of plaintiff's counsel the court suppressed therefrom the following question propounded on behalf of the defendant: "Do you remember

Page 149

anything about the length of the stop of the car at the corner of Marshall street, so as to give some idea of what it was?" The answer (also rejected) was: "My recollection is that it was a little longer than usual at street...

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