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

• Decision Date: 05 October 1909
• Citation: 140 Wis. 235,122 N.W. 745
• Court: Wisconsin Supreme Court
• Parties: BATES v. CHICAGO, M. & ST. P. RY. CO.

140 Wis. 235

122 N.W. 745

BATES

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Oct. 5, 1909.

Appeal from Circuit Court, Vernon County; J. J. Fruit, Judge.

Action by Mary A. Bates against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Among other references upon the part of the appellant were the following: Twitchell v. G. T. Ry. Co. (D. C.) 39 Fed. 419;Bandekow v. C., B. & Q. Ry. Co., 136 Wis. 341, 117 N. W. 812;Groth v. Thomann, 110 Wis. 488, 86 N. W. 178;Hill et al. v. Fond du Lac, 56 Wis. 242, 14 N. W. 25;Kelley v. C., M. & St. P. Ry. Co., 53 Wis. 74, 9 N. W. 816;Sherman v. Menominee R. L. Co., 77 Wis. 14, 45 N. W. 1079;McGowan v. C. & N. W. Ry. Co., 91 Wis. 147, 64 N. W. 891;Block v. Milwaukee St. Ry. Co., 89 Wis. 371, 61 N. W. 1101, 27 L. R. A. 365, 46 Am. St. Rep. 849;Rowley v. C., M. & St. P. Ry. Co., 135 Wis. 208, 115 N. W. 865;Jones v. C. & N. W. Ry. Co., 49 Wis. 352, 5 N. W. 854;Bourda v. Jones, 110 Wis. 52, 85 N. W. 671;Peat v. C., M. & St. P. Ry. Co., 128 Wis. 86, 107 N. W. 355;O'Brien v. C., M. & St. P. Ry. Co., 102 Wis. 628, 78 N. W. 1084;Dowd v. C., M. & St. P. Ry. Co., 84 Wis. 105, 54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917;Boyce v. Wilbur L. Co., 119 Wis. 642, 97 N. W. 563; 6 Thompson, Neg. § 7635; Atkinson v. Goodrich T. Co., 60 Wis. 141, 18 N. W. 764, 50 Am. Rep. 352.

Among other references upon the part of the respondent were the following: Ill. Cent. R. R. Co. v. Griffin, 80 Fed. 278, 25 C. C. A. 413;Hupfer v. Nat. Dist. Co., 114 Wis. 279, 90 N. W. 191;Bennett v. Louisville, etc., Ry. Co., 102 U. S. 577, 26 L. Ed. 235;Barowski v. Schulz, 112 Wis. 415, 88 N. W. 236; 3 Thompson, Neg. §§ 2678, 2709, 2710; Bremer v. Pleiss, 121 Wis. 61, 98 N. W. 945; 1 Thomp. Neg. § 993; Banderob v. Wis. Cent. Ry. Co., 133 Wis. 249, 113 N. W. 738; 26 A. & E. Ency. Law, p. 512; Hartwig v. C. & N. W. Ry. Co., 49 Wis. 358, 5 N. W. 865;Bloor v. Delafield, 69 Wis. 273, 34 N. W. 115;Garske v. Ridgeville, 123 Wis. 503, 102 N. W. 22;Morey v. Lake Superior, etc., Co., 125 Wis. 148, 103 N. W. 271, 12 L. R. A. (N. S.) 221;Howard v. Beldenville L. Co., 129 Wis. 98, 108 N. W. 48.C. E. Vroman and C. W. Graves, for appellant.

D. O. Mahoney and J. Henry Bennett, for respondent.

TIMLIN, J.

Upon a special verdict finding that the plaintiff when injured was in the baggage room of the defendant at the invitation of the baggage master, and that this baggage room was not then reasonably safe for the use of passengers invited thereto to identify their baggage, and that this condition of the baggage room was the proximate cause of plaintiff's injury, and that there was no want of ordinary care on plaintiff's part which contributed to such injury, the plaintiff had judgment for the amount of damages found by the jury.

The appellant assigns several errors, which fairly raise the question of the sufficiency of the evidence to support the verdict, of the sufficiency of the verdict to support the judgment, and complains of failure to submit to the jury a question proposed by defendant, also of error in instructions to the jury. The facts in evidence show that the baggage room of the respondent at La Crosse is so constructed that a depression or pit extends from the double doors at the west side of the room eastward into the room about 24 feet and nearly across the room. This is about 2 feet 9 inches in depth, and slightly wider than the baggage truck, and it is used for running the baggage truck into the room so that the platform of the truck will be practically on a level with the floor of the room. This is an obvious convenience in loading baggage on the truck and transferring the loaded truck from the baggage room to the platform which is on the lower level. At both sides and at the end of this pit or depression the floor of the baggage room is available for and used for the deposit of baggage. The plaintiff was a passenger on defendant's road, and went into the baggage room at the suggestion of the defendant's employés to identify her baggage and have the same checked. She then had some conversation with the baggageman, and left for the purpose of purchasing a rope to tie up one item of her baggage which was defectively fastened. She then returned, and engaged in conversation with the baggage master, while one of the assistants of the latter was tying up the baggage with this rope which she brought with her. She went with the baggage master across the baggage room to identify her luggage. Near where she stood there was a truck in the pit or depression, and she accidentally stepped between the edge of the truck and the edge of the pit or depression, breaking her leg and sustaining injuries. She had not noticed, nor had her attention been called to, the pit, depression or truck up to this time. The testimony on the part of the defendant differed materially from this, but the foregoing is the version of the occurrence established by the verdict.

Upon this state of facts the defendant denies the right of the plaintiff to recover damages because the construction of the baggage room was “an engineering problem,” and contends that its construction and maintenance was no breach of duty to any one; that it was a customary and usual mode of constructing baggage rooms and handling baggage and necessary to the easy and convenient operation of that branch of the carrying business; and that, therefore, the jury was not warranted in finding that the baggage room was not reasonably safe. To maintain this contention the appellant cites Boyd v. Harris, 176 Pa. 484, 35 Atl. 222;Tuttle v. Detroit, etc., Ry. Co., 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114; C. & G. W. Ry. Co. v. Armstrong, 62 Ill. App. 228;St. Louis Nat., etc., Co. v. Burns, 97 Ill. App. 175; C. & E. I. Ry. Co. v. Driscoll, 176 Ill. 330, 52 N. E. 921;Titus v. Bradford, 136 Pa. 618, 20 Atl. 517, 20 Am St. Rep. 944;Bethlehem I. Co. v. Weiss. 100 Fed. 45, 40 C. C. A. 270, and other cases of that class. These cases all involved questions arising between master and servant. Generally speaking, and without reference to special statutes or exceptional rules, the law confers upon the master the right to construct and maintain his own property and appliances in his own way and according to his own judgment, and, so long as there is no latent or hidden danger in such construction or maintenance, the servant accepting employment from the master does so subject to this right of the master, and assumes the risk of injury from the open and obvious character of such appliances. Consequently in such cases, where the defect causing the injury presents a mere question of this kind, courts have sometimes designated it as a mere “question of engineering,” meaning a question of judgment in the construction of the appliance. There is no legal rule or doctrine by force of which a court or jury is disabled from deciding a cause merely because in such decision there may be involved “a question of engineering.” The expression relates to a condition of fact pertinent in cases between master and servant, and not to a rule of law. The rule above stated obtaining between master and servant and relied upon by appellant has no application between carrier and passenger, which was the relation of the parties in the instant case. As to the respondent, it was the duty of appellant to have its baggage-room reasonably safe. Indemaur v. Dames, 19 Eng. Rul. Cas. 64; Ill. Cent. R. R. Co. v. Griffin, 80 Fed. 278, 25 C. C. A. 413;Banderob v. Wis. Cent. Ry. Co., 133 Wis. 249, 113 N. W. 738. Whether or not the appellant performed this duty may be a question of law or a question of fact, and the inquiry in the instant case is whether there was sufficient evidence to go to the jury on this point. It is the duty of a carrier to provide reasonably safe depot buildings in which freight and property transported over its road might be securely stored; and facts showing the character and location of the depot buildings, the materials out of which it was built, and its liability to take fire are proper to be laid before the jury for the purpose of showing that the building was not reasonably safe. Whitney v. C. & N. W. Ry. Co., 27 Wis. 327. See, also, Conroy v. Railway Co., 96 Wis. 243, 250, 70 N. W. 486, 38 L. R. A. 419. While it is the duty of the railroad company to have its depot open and lighted for the convenience of passengers (Dowd v. Railroad Co., 84 Wis. 105, 54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917), it is a question for the jury whether under the circumstances of the particular case the railroad company was negligent in failing to have such lights. Patten v. C. & N. W. R. R. Co., 32 Wis. 524. Whether a railroad company provided a sufficient platform to enable passengers to descend from the cars without danger was said to be a question for the jury in Delamatyr v. M. & P. du C. R. R. Co., 24 Wis. 578; and a like ruling was made in McDermott v. Railway Co., 82 Wis. 246, 52 N. W. 85, where several cases are cited; and see Banderob v. Railway Co., 133 Wis. 249, 113 N. W. 738. Whether the...