Banderob v. Wis. Cent. Ry. Co.

• Decision Date: 05 November 1907
• Citation: 133 Wis. 249,113 N.W. 738
• Parties: BANDEROB v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

133 Wis. 249

113 N.W. 738

BANDEROB

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Action by Metha Banderob against the Wisconsin Central Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Appeal from a judgment of the circuit court for Winnebago county, rendered upon special verdict, for $4,750 damages in an action to recover damages for a personal injury alleged to have been caused by the negligence of the defendant. The special verdict found: (1) The plaintiff sustained the injuries complained of upon defendant's depot grounds, by reason of being tripped by wires located and maintained by the defendant between the depot platform and the lawn to the north, at the time and place alleged in the complaint. (2) The plaintiff was lawfully upon said depot premises at the time of the injury. (3) The wires were in such condition as to be dangerous to persons having occasion to use said platform at night. (4) Said condition had existed for such a length of time that the defendant in the exercise of ordinary care and prudence ought to have known of the same and remedied the same. (5) The defendant was guilty of want of ordinary care and prudence in locating and maintaining said wires in the position they were in at the time the plaintiff was injured. (6) The defendant was guilty of a want of ordinary care and prudence in not maintaining sufficient light in the place where said wires were strung. (7) The facts above found in (3), (5), and (6) were the proximate cause of plaintiff's injury. (8) No want of ordinary care and prudence on the part of plaintiff contributed to produce the injury. (9) $4,750 will reasonably compensate the plaintiff for the injuries she sustained.

The detail or evidential facts are few and simple. The defendant has at Oshkosh, Wis., between Algoma street on the south and Church street on the north, its passenger station and grounds adjoining, extending parallel with the tracks. Somewhat south of the middle of these grounds is the passenger depot building, a little farther north the express office and building, next north of this is a cinder walk extending east from the east side of the brick platform, next north of this a grass plat extending to Church street. Extending from Algoma street to Church street, between the railroad tracks and the passenger depot, express building, cinder walk, and grass plat, is a brick platform used by passengers in coming to and leaving trains. Beginning at Church street this brick platform is 12 feet wide down to the point where the north boundary of the cinder walk extended westerly would intersect the same. At this point of intersection there is a telegraph pole. Thence southerly the platform is widened out to extend eastwardly, making it 20 feet in width to the cinder walk and to the express building, and after continuing south past the express building is widened to 24 feet, and continues at this width for a distance of about 75 feet, when it is widened so as to take in and surround the passenger depot, and thereafter, continuing southerly, extends to Algoma street at a width of about 12 feet. The following is Defendant's Exhibit 2, and shows part of the grass plat, the platform, the eastward expansion of the platform, the telegraph pole, and the wires crossing to the right from the telegraph pole. The view is looking south from a point 56 feet north of the telegraph pole.

IMAGE

There was no fence on the west side of the grass plat, and between that and the brick platform, and they are on substantially the same level. Running along the north boundary of the cinder walk and over to the telegraph pole was a wire fence, consisting of two wires, and at the time in question and for some time prior to that time the top wire was broken down and the bottom wire was several inches from the ground, and the wire extended from the telegraph pole eastwardly to the nearest fence post. The nearest light to this wire fence and telegraph pole was at the passenger depot, 59 feet distant, and was a 16 candle power incandescent electric light. There was some evidence of use of this part of the grass plat by persons crossing between the telegraph pole and the cinder walk. On the night in question the plaintiff with two friends started for the depot in question for the purpose of seeing a friend off on the train. It was a dark night. They came down Church street, entered upon and turned south on the brick platform, were moving rapidly south toward the passenger depot, and, coming near the telegraph pole, they found a baggage truck on the platform quite close to and west of the telegraph pole and also moving south. One of the girls passed south upon the platform on the west side of the truck, and between the truck and the train, which was then standing on the track headed north. The plaintiff undertook to pass around the truck on the east of the telegraph pole, stepped onto the grass plat about 20 feet from the telegraph pole, and continued on the grass plat toward the passenger depot until she came to the wire in question, when she tripped on this wire, and fell onto the brick platform south of the wire, and in so doing sustained the injuries complained of.

Thos. H. Gill and Walter D. Corrigan, for appellant.

W. C. Cowling (John F. Kluwin, of counsel), for respondent.

TIMLIN, J. (after stating the facts as above).

Although there is little conflict of fact in this case, the questions of law are very close. The principal contention of the appellant is that the plaintiff was a trespasser upon the grounds of the defendant at the time she received the injury by tripping against and falling over the wire stretched by defendant from the telegraph pole eastwardly at right angles to the length of the brick platform, where the 12-foot width of the latter terminated, and between the grass plat and the north edge of the 8-foot eastward extension or expansion of the brick platform; that in consequence the defendant owed the plaintiff no duty, except the duty not to inflict upon her willful injury; and in further consequence the plaintiff was guilty of contributory negligence as matter of law. In the first place, and before setting foot on the grass plat, the plaintiff and her companions, coming upon the platform or depot grounds for the purpose of there taking leave of a friend who was a passenger, or in good faith about to become a passenger, on defendant's train, sustained toward the defendant the legal relation of a person upon its grounds by its invitation, to whom the defendant owed the duty of ordinary care. Dowd v. Railway Co., 84 Wis. 105, 54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917, and cases cited in opinion; Klugherz v. Railway Co., 90 Minn. 17, 95 N. W. 586, 101 Am. St. Rep. 384;McKone v. Railway Co., 51 Mich. 601, 17 N. W. 74, 47 Am. Rep. 596; 3 Thompson's Commentaries on Negligence, §§ 2678 to 2685. Aside from the degree of care, the extent of the duty which defendant owed such person is that stated in Patten v. Railway Co., 32 Wis. 524, 533 (opinion), to be well settled as follows: “To keep in a safe condition all portions of their platforms and approaches thereto, to which the public do or would naturally resort, as well as all portions of their station grounds reasonably near to the platforms, where passengers, or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go.” In Montgomery, etc., Ry. Co. v. Thompson, 77 Ala. 448, 54 Am. Rep. 72, it is said that this duty is owing to the friends of the traveler who come to take leave of him at the depot, and it seems to have been first formulated by Judge Dillon in McDonald v. Railway Co., 26 Iowa, 124, 95 Am. Dec. 114. See, also, Cincinnati, etc., Ry. Co. v. Aller, 21 Am. & Eng. R. R. Cases, 304, and cases in note on pages 312, 313; Stewart v. Railway Co., 2 Am. & Eng. R. R. Cases, 497. In 3 Thompson's Commentaries on Negligence, § 2682, it is said that this duty extends to all portions of the ground of the carrier which passengers will naturally and ordinarily use, in the absence of being warned not to do so, in approaching the carrier's station, in waiting for the arrival of its vehicle of transportation, and in getting off or on the same. The rule governing such case seems to be cognate to the rule respecting the liability of towns for obstructions in the highway outside of the traveled track. Wheeler v. Westport, 30 Wis. 392, and cases cited in opinion. But enough has been said to show that this rule is firmly intrenched in our jurisprudence, and we have no desire to limit or modify it.

Next, it must be apparent that to hold that stepping off the edge of the platform and onto the grass plat at such station was a trespass which as matter of law relieved the defendant from all duty toward the plaintiff would be inconsistent with the rule above quoted. If the defendant is by virtue of this rule obliged to use ordinary care to keep in a safe condition those portions of its station grounds reasonably near to its platform where passengers or persons in the relation of plaintiff in this case would naturally or ordinarily be likely to go, it cannot be consistently said that at the same time it owes no duty, except the duty not to inflict willful injury, to the person who does get off the platform upon grounds reasonably near to the platform, where one in the position of such person would naturally or ordinarily be likely to go. Again, reasonable nearness to the depot platform, and whether one would naturally or ordinarily be likely to go in such place, must in most cases be questions of fact for the jury. The rule relied upon by appellant, while abstractly sound and often applicable, is not a rule of universal or general application. Meibus v. Dodge, 38 Wis. 300, 20 Am. Rep. 6;Johnson v. Railway Co., 56 Wis. 274;¹ 1 Shearman &...