Bassett v. Milwaukee N. Ry. Co.

• Decision Date: 04 March 1919
• Citation: 170 N.W. 944,169 Wis. 152
• Parties: BASSETT v. MILWAUKEE NORTHERN RY. CO.
• Court: Wisconsin Supreme Court

169 Wis. 152

170 N.W. 944

BASSETT

v.MILWAUKEE NORTHERN RY. CO.

Supreme Court of Wisconsin.

March 4, 1919.

Appeal from Circuit Court, Milwaukee County; Walter Schinz, Judge.

Action by Bernard J. Bassett against the Milwaukee Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.Bottum, Bottum, Hudnall & Lecher, of Milwaukee, for appellant.

Thompson, Myers & Kearney, of Racine (Thomas M. Kearney, of Milwaukee, of counsel), for respondent.

OWEN, J.

The defendant operates an electric interurban railway between Milwaukee and Sheboygan, and one of the stations on its line is Port Washington. Between Milwaukee and Port Washington is a station known as Thiensville. At the time of the accident plaintiff was attending a school of engineering at Milwaukee. The school included in its course of study an annual trip to Port Washington for the purpose of inspecting power plants at that city. The school chartered a car of the defendant on April 6, 1916, to take the students upon this annual trip. Between 60 and 65 students made the trip. The car had seating capacity for 52 passengers. There were three compartments in the car. In the rear was a regular passenger compartment, next forward was a smoking compartment, and ahead of the smoking compartment was a cab, or baggage-freight-express-motorman's compartment. This will be hereafter referred to as the “cab.” It was 7 feet 8 inches long, and approximately 8 feet wide, and contained no seats. There is a self-locking door between the smoking compartment and the cab, which is usually kept locked. In the cab were hinged platforms located on each side of the compartment which, when in use, fold up and fasten to the seats of the car. When folded down they are high enough so that a milk can can go underneath them, and they may be used for seats. It was a single end car, the forward end being entirely closed, and kept closed when running; the only passenger entrance to the car being at the rear. On the trip from Milwaukee to Port Washington the conductor opened the door between the smoking compartment and freight compartment, because there were not seats enough for all the passengers. Some of the passengers occupied the cab, some standing and some sitting on these benches on the trip from Milwaukee to Port Washington.

Among the plants “inspected” at Port Washington were certain breweries, at which the crowd was cordially and hospitably received and entertained. These plants also proved of interest to the conductor and motorman, who joined the “inspection party” while at these plants. When it came time to start on their return trip, some difficulty was experienced in getting the students aboard, at least one had to be carried into the car. The conductor could not say how many were intoxicated, but he thought three-quarters of them had been drinking beer. Some of them had been drinking pretty heavily, and their general condition was boisterous. The plaintiff had imbibed rather temperately, and upon the return trip was not in harmony with the prevailing exuberant spirit, and, as the car was crowded beyond its seating capacity anyway, he sought the solitude of the motorman's cab, where he rode until reaching Thiensville, when the car came into collision with another car, and he sustained the injuries which will hereafter be referred to. This cab is as securely inclosed as any part of the car. There was no more danger of being thrown from that part of the car than the regular passenger compartment.

The negligence of the motorman was conceded. The defendant resists liability solely on the ground that the plaintiff was guilty of negligence as a matter of law in occupying the cab, and upon the authority of cases in some jurisdictions which hold that a person who is injured while riding on an open platform of an ordinary passenger car on a steam railway, there being seating, or, in some cases, standing, room inside the car, is guilty of negligence as a matter of law. This rule, it is claimed, was adopted and applied by this court in the case of Miller v. Railway Co., 135 Wis. 247, 115 N. W. 794, 17 L. R. A. (N. S.) 158, 128 Am. St. Rep. 1021. We think that a careful perusal of that case will disclose that it was there held as a fact, and not as a matter of law, that plaintiff's deceased was guilty of contributory negligence. However, we will not discuss that case further than to suggest that it is doubtful whether it sustains the principle contended for by the defendant. The situation of the plaintiff here and of the deceased there is comparable to the extent that both were passengers on a common carrier conveyance, but there the similarity ends. We can see no similarity whatever between the risk assumed by the plaintiff in this case and the deceased in that. There the deceased was riding on an open platform of a swiftly moving steam passenger train, in the nighttime, during or immediately after a severe rainstorm, while here the plaintiff was riding within the inclosure of the car, as secure from being thrown off as he would have been had he occupied a seat in the passenger compartment. The only extra risk to which he subjected himself by standing in the motorman's cab that could be suggested by appellant's counsel upon the argument was that, in case of collision, the front part of the car was necessarily the more dangerous. This would be true, perhaps, in case of a headend collision, but in case of a rear-end collision he was safer in the front end of the car than he would have been in the passenger compartment. Furthermore, compared with the number of passenger cars and trains operated, collisions are very infrequent, and it can hardly be said as a matter of law that a person of ordinary intelligence and prudence, boarding a passenger train or car, should anticipate injury from such cause. If so, negligence would result from riding on them at all, as, in case of a collision, there is no safe or secure place in the car.

[1][2] The dangers to which plaintiff exposed himself were not as great nor as obvious and apparent as were the dangers to which plaintiff's deceased was exposed in Engen v. Chippewa Valley, etc., Co., 162 Wis. 516, 156 N. W. 460, where it was held that the question of deceased's contributory negligence in standing in the vestibule in the rear end of the car, in a space 24 by 27 inches, very close to the edge of the platform next to the open door, where even a moderate swaying of the car in turning the curve might cause him to lose his balance and have a tendency to throw him off, was a jury question. Unless it can be said that plaintiff's “contributory negligence is so clear and decisive as to leave no room for unbiased and impartial minds to come to any other conclusion, or, as it is sometimes said, so clear and conclusive as not to admit, reasonably, of any opposing inference in unbiased and unprejudiced minds, the proper inference to be drawn must be determined by the jury.” Powell v. Ashland Iron & Steel Co., 98 Wis. 35, 73 N. W. 573, and cases there cited. We cannot say as a matter of law that plaintiff's conduct in taking up his position in the motorman's cab was inconsistent with that degree of care which would have been exercised by the great mass of men under the same circumstances. Consequently there was no error in submitting this question to the jury.

[3] Appellant complains because it was not permitted to prove a rule of the company...