Bolin v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 07 December 1900
• Citation: 108 Wis. 333,84 N.W. 446
• Court: Wisconsin Supreme Court
• Parties: BOLIN v. CHICAGO, ST. P., M. & O. RY. CO.

108 Wis. 333

84 N.W. 446

BOLIN

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

Supreme Court of Wisconsin.

Dec. 7, 1900.

Syllabus by the Judge.

1. In an action to recover damages claimed to have been caused by actionable negligence of the defendant, contributory negligence of the plaintiff, however slight, precludes his recovering damages, notwithstanding negligence of the defendant, however great, contributed thereto.

2. If a person injure another, either actually or constructively intending to do so, the injury is not attributable strictly to negligence, but to that degree of misconduct called willful misconduct in the law, which this court has classed as gross negligence, though it has no element of inadvertence, a necessary element of negligence.

3. If an injury be willfully inflicted within the meaning of the rule last stated, contributory negligence on the part of the injured person will not preclude his recovering damages therefor; neither will the fact that he was, at the instant of receiving such injury, a willful trespasser upon the property of the person guilty of the willful act.

4. A railway company is not obliged under all circumstances to stop its train before requiring a willful trespasser thereon to cease his unlawful conduct.

5. If a railway train be not going at a dangerous rate of speed for a trespasser thereon to leave it, having regard to existing circumstances and the general custom of persons of his class in respect to boarding and leaving such trains while moving, and he cease the trespass by jumping from the train pursuant to the command of a trainman, unaccompanied by any act of such trainman reasonably calculated to cause such trespasser to lose his self-control, the circumstances will not tend to show intent on the part of such trainman to commit a willful injury.

6. It is not sufficient to warrant a reasonable inference of that intent necessary to a willful injury to show that the alleged guilty party ought reasonably to have anticipated that such a result was merely within reasonable probabilities, else mere want of ordinary care would have that effect. To warrant such inference the circumstances must be such that a man of ordinary intelligence would expect such an injury to occur.

7. If a trainman command a willful trespasser, riding on the bumpers of a freight train moving at the rate of four or five miles an hour, and whom such trainman has reasonable ground to believe is skilled in jumping on and off trains under the existing circumstances, no means reasonably calculated to cause such trespasser to lose his self-control being used to enforce the command, an intention to injure such trespasser, necessary to a willful injury, cannot reasonably be inferred therefrom.

Appeal from circuit court, Eau Claire county; James O'Neill, Judge.

Action by Peter J. Bolin, administrator, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Action to recover damages for the death of Christ Peterson, alleged to have been caused by the wrongful conduct of the servants of the defendant in charge of one of its trains, for which conduct it was claimed defendant was liable. The deceased and his brother started from a place called Foxboro to beat their way on trains to their homes near Black River Falls, Wis., a distance of several hundred miles. After journeying about five days, riding sometimes on one train and sometimes on another, as they could secure an opportunity, and without paying any railroad fare, on some occasions riding by permission of the trainmen and on others secreting themselves upon the train, they arrived at the station of Chippewa Falls. From there they went to Eau Claire on a street car. On the night of December 10th, with other persons to the number of about ten, who were in the same business of beating their way upon railroad trains, they boarded an east-bound passenger train at the Eau Claire station, each of such persons secreting himself on the train as best he could, the deceased and his brother locating themselves on the front end of a mail car. At Rosedale station, some distance east of Eau Claire, they were all compelled to leave the train. From there the deceased and his brother walked on the track to Augusta, a station further east, at which place they boarded a freight car in which there were other persons who were beating their way. It was a stock car and the men all went inside. When the train arrived at Fairchild, the car occupied as aforesaid was set out on a side track, whereupon the deceased and his brother and their associates left the car. The two Petersons, with one or more of the others mentioned, then went upon the depot platform and waited for an opportunity to again board the train when it was made up and ready to proceed east. While on the platform one of the men who accompanied the Peterson boys suggested that they should not all keep together, whereupon the Petersons went by themselves. They stepped down upon the ground upon the right-hand side of the train, and, just before or as it started to move east, they boarded it by taking hold of the grab irons that were on the ends of the cars and climbing up onto the bumpers, one securing a place on each car. When the train had proceeded a short distance and had not yet left the depot platform, the conductor walked along on the ground on the left-hand side of the train for the purpose of discovering and ridding his train of trespassers. The train was then moving about four miles an hour. He discovered the Peterson boys located as aforesaid and commanded them in a sharp tone of voice and with some profane language, swinging his lantern between the cars at the same time, to jump off the train. They obeyed the command. The deceased went out on the grab irons first and jumped for the platform, and his brother followed. As the deceased struck the platform he slipped, or in some manner lost control of himself, and fell under the wheels of the moving car, and was so badly injured that he died a few days afterwards. Some of the persons who were associated with the Peterson boys in the stock car had secreted themselves on the train before such boys were compelled to leave it, two of such persons being on the bumpers of the front end of the car forward of the Peterson boys. They observed the conductor or brakeman looking for trespassers and jumped off the train just before the Peterson boys left it. One of them testified on the trial, saying that the train was going three or four miles an hour, or four or five miles an hour, and that, after they were compelled to leave the train, and as they were running along the side watching for an opportunity to get on again, they saw the Peterson boys jump off. A short time after the accident happened the survivor of the Peterson boys made a statement of the circumstances of the injury to his brother, to be taken down in writing. Such statement was to the effect that while they were on the bumpers of the train it started; that it had gone only a few rods when they were commanded to get off the train, the man saying, “Get off boys, God damn you, hurry up and get off.” There was other evidence substantially all to the effect that the speed of the train when the Peterson boys jumped off was not more than four or five miles an hour, or such that a person could walk and keep up with it. There was undisputed evidence that the class of men who beat their way on railroad trains customarily jump on and off trains when they are moving at a greater speed than four miles an hour; that when a train is going at such greater speed it is common for such class of men to get upon the bumpers of the cars, catch onto the truss rods, crawl upon the truck beams and secrete themselves on the trains in other ways; that when such men are discovered, they will, unless permitted to ride, customarily drop or jump off the train.

The jury rendered a special verdict substantially as follows:

(1) The conductor ordered the deceased and his brother to leave the train, striking at them with the lantern which he carried in his hand.

(2) The conductor ordered the deceased and his brother from the train, accompanying the order with an oath.

(3) Because of the position the conductor was in when he ordered the deceased off the cars, the manner in which he was dressed, the fact that he had a lantern in his hands, the distance from him to the deceased, the words used by him, and all the circumstances, the deceased jumped from the car because of a reasonable apprehension of immediate physical force being used to eject him, the violently threatened force being sufficient to impress a reasonable person with the belief that there was imminent danger of its being employed.

(4) The circumstances existing at the time the deceased was compelled to leave the train were such as to imperil his personal safety.

(5) The train was moving at the rate of three or four miles an hour.

(6) The conductor exercised his authority of removing passengers from the train in an unreasonable, imprudent and improper manner, and without proper regard to the safety of the deceased.

(7) The act of the conductor was the proximate cause of the injury to the deceased.

(8) The conductor was guilty of reckless or wanton conduct in compelling the deceased to leave the car under the circumstances.

(9) Such reckless or wanton conduct was the proximate cause of the injury.

(10) The conductor, under the circumstances, ought reasonably to have anticipated that his conduct would cause an injury to the Peterson boy.

(11) The Peterson boy was not guilty of any want of ordinary care which contributed directly to the accident.

(12) “We assess the damages recoverable for the benefit of the estate at $5,000.”

Upon motion of defendant the verdict was amended by striking out the affirmative answer to the eighth question, substituting a negative answer therefor, and upon the verdict so...