Brown v. Chi., Milwaukee & St. Paul Ry. Co.

• Decision Date: 10 January 1882
• Citation: 54 Wis. 342,11 N.W. 356
• Parties: BROWN AND WIFE v. CHICAGO, MILWAUKEE & ST. PAUL RY. CO.
• Court: Wisconsin Supreme Court

54 Wis. 342

11 N.W. 356

BROWN AND WIFE

v.CHICAGO, MILWAUKEE & ST. PAUL RY. CO.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court Juneau county.

COLE, C. J., LYON, J., dissent.--

[STATE REP.

J. W. Lusk, for respondents.

D. S. Wegg, for appellant.

TAYLOR, J.

The cause of action in this case will be best stated by giving a copy of the complaint, which sets forth fully the facts upon which a recovery is sought. After stating the incorporation of the defendant, and alleging that it was a common carrier of passengers in this state, it proceeds as follows: “That said plaintiffs, on or about the second day of October, 1879, desired to go to Mauston, aforesaid, from the said village of Kilbourn City, and for that purpose bought and paid about $2.30 for tickets at Kilbourn City, from the agent of said defendant, to convey said plaintiffs to Mauston and return to Kilbourn City, whereby it became the duty of said defendants, as carriers of passengers, to carry the said plaintiffs from Kilbourn City to Mauston in their passenger train which left Kilbourn City to go to Mauston at about 6:20 P. M. of said day, and to treat said plaintiffs in a respectful manner, and carry them to the proper and usual landing place at Mauston, to-wit, the depot of said defendant at said place. That the said defendant wholly disregarded its said duty in the premises, and its contract and obligations to and with said plaintiffs, and, when about three miles east of the depot of the defendant at the said village of Mauston, informed said plaintiffs, by its proper agents and servants, that they had arrived at Mauston, aforesaid, and stopped the train for them to get off. That said plaintiffs, supposing and believing they had arrived at Mauston, as they were informed they had by the defendant's servants, as aforesaid, alighted from the defendant's train, and the said train passed on. That after said train had left them they perceived that they were not at the Mauston depot, and did not know where they were. That it was quite dark. That they supposed and believed that they were near the Mauston depot, and proceeded up the track in the direction of Mauston, as they supposed, expecting in a few moments to arrive at the Mauston depot. That, instead of being near the Mauston depot, they found afterwards they were not, but, on the contrary, had been carelessly and negligently put off the defendant's train by its servants about three miles east of said depot, apparently in the country; and the plaintiffs knew not otherwise, but supposed and believed that they had got to walk west on the track of the defendant until they came to some station. After walking on the track of the defendant about three miles they came to the said village of Mauston; the said plaintiff Mary A. Brown being, by reason of said long walk, very tired and exhausted, sick and prostrated, passing the balance of the night in a very restless, uneasy, and feverish condition. That previous to the said second day of October, 1879, and leaving Kilbourn City, as aforesaid, the said plaintiff Mary A. Brown had been a healthy, well, and robust person, and at the time of taking said walk was pregnant with child. That in consequence of being carelessly and negligently put off the cars of the defendant, as aforesaid, and her said walk, she became sick, ailing, and very much enfeebled, and continued getting worse, although using the best of care and medical attendance, until about December 20, 1879, when she lost her child. That for a long time the said plaintiff Mary A. Brown was seriously and dangerously ill, so much so that her life was greatly endangered and despaired of, and she suffered, had suffered, continued to suffer, great pain in body and mind; and the said plaintiff Orange Brown, her husband, suffered personally great anxiety of mind, and was put to great expense and trouble in care, nursing, help, and medical attendance and medicines.”

The defendant's answer was a general denial only. In the court below the plaintiffs recovered, among other things, for the alleged injury to Mrs. Brown.

Upon this appeal the learned counsel for the railway company insist that the damages claimed for the sickness of the wife, and for her medical attendance and care, are too remote to constitute a cause of action, and that it was error on the part of the court below not to take that part of the case from the jury.

The first position taken by the learned counsel for the appellant is that the cause of action set out in the plaintiffs' complaint is for a breach of contract, and not an action in tort. Upon this point we cannot agree with the appellant. We think the gravamen of the action is the negligence and carelessness of the appellant's agents and employes in directing the plaintiffs to leave the train before they had arrived at the end of their journey. They did not leave at a place short of their destination knowing that fact, but through the neglect of the appellant's employes they were induced to leave the train short of their journey's end, supposing that they had reached it. It is true, the plaintiffs in their complaint state that they paid their fare and went on board the train as passengers, to be carried from one point to another upon the appellant's road, and that by reason of such payment and entry upon that train it became the duty of the appellant to carry them from the point of starting to their destination. These facts are, perhaps, sufficient to constitute a contract on the part of the appellant to safely carry them to their destination. Still, it is necessary in all actions against a carrier of passengers to state facts which show the right of the party to be carried before he can complain of any breach of duty on the part of the carrier in not conveying them safely, or in not carrying them to their destination. The complaint in this case is not so much that the plaintiffs were not carried to their destination, but that on the way the appellant's employes carelessly and negligently induced them to quit the train before they arrived at their destination, and that in consequence of such wrong on the part of the appellants they suffered damage. It is the negligence in putting the plaintiffs off the train before the journey was completed which is complained of, and not a breach of the contract for not carrying them to the end of their journey.

We see no reason for distinguishing this case from the class of cases which hold a railway company liable in tort for an injury done to a passenger, while traveling on a train, caused by collision, the breaking down of a bridge, or from any defect in the road or cars. All these matters are a breach of the contract to carry the passenger safely, yet the carrier is held liable, in an action of tort, for any injury sustained, based upon the allegation that it was incurred through the carelessness and negligence of the company. All the cases hold that the person injured through the negligence or carelessness of the carrier may proceed either upon contract, alleging the careless or negligent acts of the defendant as a breach of the contract, or he may proceed in tort, making the carelessness and negligence of the company the ground of his right of recovery; and if he proceed for the tort it becomes necessary on the part of the plaintiff to show that he stands in the relation of a passenger of the carrier, in order to show his right to recover damages for the negligence of the carrier in not discharging his duty in carrying him safely, Where the relation of passenger and carrier exists, the law fixes the duty of the carrier towards the passenger, and any violation of that duty is a wrong; and if injury occurs to the passenger from such wrong, the carrier is responsible and must make good the damage resulting therefrom. Wood v. Ry. Co. 32 Wis. 398;Walsh v. Ry. Co. 42 Wis. 23;Crocker v. Ry. Co. 36 Wis. 657-675, and cases cited. In this case we deem it material to determine whether the action is an action for a tort, or an action for a breach of the contract to carry the plaintiffs to their destination, because we think the rules of damages in the two actions are essentially different. We hold that the action in this case is based upon the tort of the defendant in negligently and carelessly directing the plaintiffs to leave the cars before they reached their destination.

The plaintiffs claim, and the evidence shows, that they and their child, about seven years old, were directed to leave the cars, by the brakeman, at a place some three miles east of Mauston, being told at the time that it was Mauston, their place of destination. When they left the cars it was night; it was cloudy, and had rained the day before; that there was a freight train standing on a side track where they were put off the train; no platform, and no lights visible except those on the freight train; that plaintiffs soon ascertained that they were not at Mauston, and did not know where they were. They did not see the station-house, although there was one, but it was hid from their view by the freight train standing on the side track. They supposed they were at a place two miles east, where the train sometimes stopped, but where there was no station-house. They started west on the track towards Mauston, expecting to find a house where they might stop, but did not find one until they came to the bridge, about a mile east of Mauston, and then they thought it easier to go on to Mauston than seek shelter at the house, which was a considerable distance from the track. They went on to Mauston and arrived there late at night, Mrs. Brown quite exhausted from the walk. She was pregnant at the time. She had severe pains during the night, and the pains continued from time to time, and after a few days she commenced flowing. The pains and flowing continued until some time in December, when a miscarriage took place, after which inflammation set in, and for...