Hemmingway v. Chi., M. & St. P. Ry. Co.

Decision Date17 April 1888
Citation72 Wis. 42,37 N.W. 804
CourtWisconsin Supreme Court
PartiesHEMMINGWAY v. CHICAGO, M. & ST. P. RY. CO.

OPINION TEXT STARTS HERE

Appeal from circuit court, Walworth county; I. B. WINSLOW, Judge.

Charles H. Hemmingway, an infant, by his guardian, brought an action to recover damages for personal injuries received by jumping from a train while in motion, against the Chicago, Milwaukee & St. Paul Railway Company. Verdict and judgment for plaintiff, and defendant appeals.John T. Fish and H. H. Field, for appellant.

John Winans and O. H. Fethers, for respondent.

ORTON, J.

This action is to recover damages for personal injuries to the plaintiff, caused by the alleged negligence of the defendant. It has been twice tried, and in both instances the plaintiff recovered, and this is its second appearance in this court. The evidence was substantially the same on both trials, and the facts are very fully stated in the report of the case on the former appeal, (67 Wis. 668, 31 N. W. Rep. 268,) and therefore need not be repeated. The negligence charged upon the defendant in the complaint is-- First, the failure of its servants in charge of the freight train on which the plaintiff was a passenger to stop the train at the depot or depot platform when it first arrived there; and, secondly, their failure to explain to the plaintiff why said train passed said station without stopping, or to give him any information or notice of such fact, or in relation thereto. On the first trial the court substantially instructed the jury that the defendant owed the plaintiff the first of said duties, but not the second. On the first appeal this court held that the company did not owe the plaintiff the duty to stop the freight train at the platform. As to the second of said duties, and now the only one to be considered, Mr. Justice LYON said in the opinion: “Whether the court ruled correctly or otherwise in holding that the defendant was under no obligation to anticipate that the plaintiff would attempt to leave the train when he did, which we have seen was equivalent to ruling that it was not bound to notify the plaintiff that the train would pass the depot without stopping, is a question not properly before us on this appeal. Hence we do not determine it.” On the last trial, therefore, the neglect to so inform the plaintiff was the sole ground of recovery. The negligence of the defendant in this one respect was submitted to the jury as a question of fact, with the instruction that the defendant's servants “were required to give the plaintiff such care and attention as his safety reasonably required or demanded, in view of his tender years and presumable lack of experience,” and much greater care than to an adult passenger. All the general instructions excepted to relate to this duty of the defendant to the plaintiff only indirectly, as a statement of the general principles of law applicable to the age and condition of the plaintiff, and the relations of the defendant towards him as a passenger, to aid the jury in determining the question whether the defendant was negligent in the respect above stated. Conceding that these instructions were correct, the contention of the learned counsel of the appellant is that the verdict is unsupported by the evidence. On the first trial the jury were instructed, as a matter of law, that the defendant was not guilty of negligence in not causing the plaintiff to be informed that the train would not stop at the platform in the first instance, or to be warned not to attempt getting off at the platform while the train was moving, or to be instructed as to the movements of the train on its arrival at Janesville; for all this was implied in the instruction that the employes of the company were not bound to anticipate that the plaintiff would or might attempt to get off at the platform while the train was moving. On the last trial the court did not instruct the jury, as matter of law, that the defendant was negligent in this respect, but left that question to the jury as a question of fact. The facts being given or stated, negligence may be a question of law; but in this case we choose to treat the question as the court below treated it, as one of fact for the jury; and if, in our view, the evidence warranted the verdict, based upon the finding of such negligence, it ought not to be disturbed.

1. We think that the facts justified such a finding and verdict. The plaintiff was a boy 10 years and 10 months old,--an ordinary country boy. He resided at Hanover, about seven miles west from Janesville. He was sent to Janesville by his mother on some errand, with the caution that he must not attempt to get off the train while in motion He went to the caboose, and got on without paying his fair or obtaining a ticket. There were two other passengers,--a gentleman and lady. Soon after the train had started, the conductor came into the caboose, and found the boy sitting on a seat, and asked him his name, and where he was going. The boy told him, and gave him 10 cents as his fare. The conductor remained in one apartment of the caboose, without saying anything more to the boy, until the train came near the roundhouse, about a mile west of the station. He then left the caboose, and passed over the train to the engine; and, when the engine came opposite the depot, he stepped off, and went into the office to register his train. When the caboose came to the platform, the gentleman who was in the caboose with the boy went out of the car, and stood on the lower step a moment, and then stepped off the car to the platform. The plaintiff also left his seat, and went out of the caboose, and stood on the upper step; and, as the train was about to pass the platform, he jumped off, or attempted to do so, but struck against the gentleman who got off before him, and fell under the wheels, and was injured. It was customary for this freight train to so pass the platform without stopping, and to go on a distance beyond a switch, to allow passengers there waiting to pass on westwardly on the main track. Then the freight train is backed up to the platform to allow passengers to get off. There is no evidence that either the plaintiff or his parents knew of this customary movement of the freight train. The plaintiff testified that the gentleman with him said that he guessed that the train would not stop; but that he should have attempted to get off there any way, as he was frightened and excited, and thought that the train would carry him off, and he would not be able to get back. None of the employes of the defendant paid any attention to the plaintiff after he had told his name and destination, and paid his fare in the caboose. The plaintiff evidently supposed that the train would stop at the platform in the first place, so that he might get off. When it did not stop, he did not know when or where it might stop, and he feared that he would be carried away, he knew not where; and he evidently supposed it was necessary for him to jump off as he did, as his last chance of stopping at Janesville. All this seems perfectly natural and consistent with the age and experience of the infant plaintiff. He had been to Janesville three times before, but twice with others; and once, when alone, the caboose stopped at the platform, and he got off there. To this boy plaintiff it was unaccountable that the train did not stop at the platform. He knew of no reason why it would not, and he knew of no other chance of getting off the train. It was running slowly at the time; and, if he had time to think, he evidently thought he could get off safely. Wherein did the conductor fail in his duty to the plaintiff under these peculiar circumstances? is the question that was left to the jury; and the question on this appeal is, wherein were the jury warranted in finding that he failed in his duty? It seems to us that he so failed at the time he asked the plaintiff his name, and where he was going, and received his fare. He had no reason to suppose that the boy had ever been to Janesville before on this freight train, or that he knew of this unusual movement of the train past the depot, and he might well have supposed that the boy would be frightened when they passed the depot without stopping, and fear that he was being carried past his destination, and he might also have supposed and anticipated that he would attempt the dangerous expedient of trying to jump off, at the depot, from the moving train. It would seem that if the conductor had ordinary judgment and discretion, or had been ordinarily thoughtful and prudent, he would have so supposed and anticipated. The questions he put to the plaintiff might well have suggested to him to ask him still further if he knew that the train did not stop at the depot, but would pass by some distance, and then back up, so that he might get off with safety. The conductor might have cured or supplied this failure of his duty to the plaintiff by being present, or by having some one present when the plaintiff attempted to leave the train, and preventing him from doing so to his injury. He evidently thought nothing about it, and cared nothing about it. The boy plaintiff was under his care and protection, and his inexperience and helplessness appealed most strongly to that care and protection, and yet he left him without instruction or caution in such a dangerous emergency. Herein we think the jury were justified in finding such a want of ordinary care and prudence as to make the defendant liable. This disposes of the main question as to the liability of the defendant for negligence in not sufficiently caring for the plaintiff.

2. But it is contended that the negligence of the plaintiff in attempting to jump from the moving train contributed to his injury. It was the peculiar province of the jury to determine that question. Parish v. Eden, 62 Wis. 272, 22 N. W. Rep. 399;Langhoff v. Railway Co., 19 Wis. 515;Curry v. Railway Co., 43 Wis. 685;...

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