Schiffler v. Chi. & N. W. Ry. Co.

• Decision Date: 30 April 1897
• Parties: SCHIFFLER v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

96 Wis. 141

71 N.W. 97

SCHIFFLER

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by John Schiffler, by his guardian, against the Chicago & Northwestern Railway Company, for personal injury. Judgment on demurrer to complaint for defendant, and plaintiff appeals. Affirmed.

Action for personal injury. The complaint alleges that the plaintiff is an infant under the age of 21 years; at the time of the injuries complained of, of the age of 17 years; that plaintiff entered one of defendant's passenger trains at the city of Milwaukee for the purpose of taking passage thereon to the station of Jackson, in this state; failed to get a ticket before entering upon the train, because he was late at the train; that after the train was in motion the conductor of the train informed the plaintiff that that train did not stop at Jackson, but received his proper fare, and promised that the train would slacken its speed, without coming to a full stop, so that the plaintiff might alight therefrom at Jackson, and took and kept the fare as aforesaid of the plaintiff from Milwaukee to Jackson; “that the plaintiff had several times before August 17, 1895, paid a like fare and obtained carriage as a passenger from Milwaukee to said Jackson, and in each of said cases the train of the defendant was properly stopped at Jackson long enough for the plaintiff to alight therefrom”; that the plaintiff was “young and inexperienced, and without knowledge of such danger or appreciation of such risk,” as was consequent upon an attempt to alight from a moving train; that “the plaintiff, in obedience to such suggestion of the conductor, went upon the platform of one of the coaches, and prepared to alight therefrom as soon as said train slackened its speed for that purpose, and that about the time of reaching the platform of said station at Jackson said train began to slacken its speed, and the plaintiff waited upon said platform until the train had traveled quite a distance past said station, and, believing that the speed of said train was sufficiently slackened to permit the plaintiff to alight in safety, relying on the statement of the conductor as aforesaid, the plaintiff attempted to alight from said moving train,” and was injured in the manner specifically alleged in the complaint; that the conductor “carelessly and negligently neglected to stop said train long enough to permit the said plaintiff to alight therefrom at Jackson, * * * and carelessly and negligently caused said train to be run by and past the said station called ‘Jackson,’ and by and past the point where the plaintiff was to alight therefrom as aforesaid, at such a rapid rate of speed that injury was reasonably certain to result therefrom to any one attempting to alight from said moving train.” The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. From an order sustaining the demurrer, the plaintiff brings this appeal.

Winslow, J., dissenting.Fiebing & Killilea, Timlin & Glicksman, and E. H. Conway, for appellant.

Fish & Cary, for respondent.

NEWMAN, J. (after stating the facts).

In order to state a cause of action against the defendant, the complaint must allege such facts as show that the defendant failed in the performance of some duty which it owed to the plaintiff, and that such neglect of duty caused the plaintiff's accident. It is claimed that, under the circumstances, the defendant owed to the plaintiff the duty to stop its train at Jackson, so as to permit him to alight there. But the plaintiff's presence upon the train without a ticket, and in ignorance of the regulation which prevented...