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

• Decision Date: 16 March 1897
• Citation: 96 Wis. 243,70 N.W. 486
• Court: Wisconsin Supreme Court
• Parties: CONROY v. CHICAGO, ST. P., M. & O. RY. CO.

96 Wis. 243

70 N.W. 486

CONROY

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

Supreme Court of Wisconsin.

March 16, 1897.

Appeal from circuit court, Pierce county; E. B. Bundy, Judge.

Action by William Conroy against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought for the recovery of damages sustained by the plaintiff while a passenger on its easterly bound train of cars from Ellsworth to Marshfield, Wis., by reason of the alleged negligence of the defendant. A part of the western-bound freight train of the defendant, consisting of a car load of coke, three metal tanks, two of which were filled with naphtha, and one with kerosene oil, and the caboose in the rear, had been separated from the rest of the train, and had been wrecked early in the morning, and the said cars were on fire, and in a dangerous condition, on the defendant's track between said places, about three miles east of the station called Roberts, and west of Hammond. The defendant carried the plaintiff on its passenger train to Roberts, where the fact that such wreck had occurred was made known to the plaintiff and other passengers. When the passenger train arrived within about 400 feet of the wreck, the passengers were directed to retain their places in the cars until such time as a train might arrive to carry them on their journey, and to which they would be transferred on the east side of the wreck. The forward tank, containing naphtha, exploded soon after the wreck, and everything in the rear of it, as well as the coke car in front, caught fire. This was quite a violent explosion, and portions of the tank were thrown a considerable distance, and the tank containing naphtha next to it was so broken as to permit much of the contents to run out. The kerosene tank in the rear was thus set on fire, and continued to burn from that time until nearly 11 o'clock, a considerable part of the time with great violence, and producing a loud, roaring noise, with flames shooting up. A wrecking train and car had arrived at about 8 o'clock in the morning, and were operating upon the wreck, and had hitched to the tank of kerosene oil, and attempted to draw it out, scatter the burning coke, and thus clear up the track. Attempts to remove it opened the seams in the tank, and it began to burn more violently. The wreck occurred in a farming country, and the right of way was 100 feet wide, extending through cultivated fields on either side. A gap was opened in the right of way fence on the south side, 257 feet west of the tank, and another in the wire fence, running through the fields at right angles with the road, at a point 95 feet south of the right of way, but 147 feet from the burning tank, and the third gap was opened in the right of way fence 256 feet east of the burning tank, in order to transfer the baggage, express matter, and mails. Efforts were unavailing to keep the passengers in the cars. A large number of them had got out, and thereupon it was concluded to transfer them, through the gaps, around the wreck, to a point east of the east gap, where they were to take the other train, and they were transferred accordingly, as well as the baggage, mail, and express matter; the latter being deposited about opposite the east gap, and the passengers occupied, in groups, a considerable space east from the east gap, along the right of way, for a distance of over 100 feet. The plaintiff, with other passengers, walked around said wreck, through said gaps, to the place where the eastern gap was opened, and said mail matter, baggage, etc., had been deposited, to wait for a train to continue his journey. The injury complained of occurred about an hour after the passenger train arrived at the scene of the wreck, and when the plaintiff had approached to, and was standing, about 85 feet east of the burning tank, or one-third of the distance from said tank to where the east gap had been opened. The plaintiff was standing at said place for about half or three-quarters of an hour before the explosion occurred; having left the eastern gap, and walked westward, towards the burning oil tank. At the time of the explosion the flame from the burning tank ascended about 100 feet or more, and, as one witness said, there was nothing but fire in the sky. Just before the explosion the flames were burning quite high,--from three to five feet,--right in the middle of the tank, and kept rising and going down. The plaintiff received his injuries from the burning oil, cast on him by the explosion. It was contended by the plaintiff that the defendant was guilty of negligence in not warning him of the danger to which he was exposed by said burning wreck, and in not providing a safe place, and in designating an unsafe one, for the plaintiff and other passengers to wait for the train designed to carry them eastward, and in not warning the plaintiff of the danger to which he was exposed at the place he was waiting, and in allowing him to leave said train, and go to said place and there remain, and in allowing said train wreck to be and remain in a dangerous and unsafe condition. The defendant denied all allegations of negligence, and alleged and gave evidence tending to show that, by its officers and agents, it directedthe plaintiff and other passengers to a place at the east gap, and eastward thereof, designed as a temporary station, to wait for the train to carry them eastward, which was a sufficient distance from the wreck to insure safety from any injury on account thereof, or the subsequent explosion. The plaintiff, in his complaint, alleged that the defendant directed the plaintiff to go around said wreck to a point east and south thereof, and he accordingly walked around the same to a point on defendant's right of way, designed by the defendant as a temporary station, to wait for said train to carry said passengers eastward. A special verdict was taken. By this it was found, among other things, in substance, that the plaintiff understood that he was to wait with the other passengers at or near the east gap for the train to carry him on his journey; that, after passing “around through the gaps to a point at or near the east gap, the plaintiff unnecessarily, and from motives of curiosity and pleasure, went from there to a place much nearer the burning tank,” but not “for the purpose of boarding the outgoing train, or supposing that was the proper place to do so,” and “that the plaintiff's injuries were caused by his so going nearer the burning tank,” and that he “would not have been seriously injured if he had remained at or near the east gap;” further, that “a reasonable and prudent man, under the circumstances, situate as the plaintiff was, and with his means of knowledge, would not have anticipated that there was danger of an explosion of the burning oil tank, or that it might explode, and that there was danger in being so near it when he was injured;” that he “was not guilty of any want of ordinary care that contributed to his injury,” but that “the defendant's officers and agents, by the exercise of ordinary care and prudence, would have anticipated that the explosion might occur;” that they “did not exercise reasonable care and prudence in designating a safe place where the plaintiff and other passengers were to take the train east;” that they “were guilty of negligence, which was the proximate cause of the plaintiff's injuries, and did not give the plaintiff any warning whatever with respect to the danger to which he was exposed by virtue of the burning tank;” and, among other things, that “the defendant's officers, in the exercise of reasonable care, ought to have anticipated the plaintiff would leave the east gap, or near there, and go back nearer to the tank, and thus incur unnecessary danger; that the defendant, its officers or agents, knew, or, in the exercise of ordinary prudence should have known, of the plaintiff's position in time to warn him of the danger which threatened on account of the burning tank.” The jury found the plaintiff's damages at $2,500. The defendant moved for judgment on the verdict in its favor, which was denied. It then moved to set aside the verdict, and for a new trial, on the grounds, among others, of error in the charge to the jury, and in refusing instructions requested by the defendant's counsel, and that the verdict was adverse to, and not sustained by, the evidence; but the motion was denied, and judgment entered thereon against the defendant, from which it appealed.

Thomas Wilson and L. K. Luse, for appellant.

J. W. Hancock, O. A. Turner, and E. A. Jaggard, for respondent.

PINNEY, J. (after stating the facts).

The carrier owes to its passenger, while that relation exists, the duty of providing reasonably safe stations, whether permanent or temporary, where he may await the arrival of trains, as well as the duty to seasonably warn him, when reasonably necessary, of any existing or apprehended danger which may interfere with or imperil his personal safety. The defendant contends it performed towards the plaintiff the full measure of its duty, and that the proximate, or, at least, a contributing, cause of the plaintiff's injury was his own negligence in unnecessarily exposing himself to danger. The point to which the plaintiff and his fellow passengers were directed to go by the defendant's agents, and to which he went as a temporary station, as thus directed, to wait for the train which was to convey him and his fellow passengers eastward to their respective destinations, was the gap opened about 16 rods east of the burning wreck, and at and east of which the mail, express matter, and baggage had been deposited. The wreck and remaining naphtha and the kerosene oil in the oil tank were burning fiercely, and flames were shooting from the joints in the oil tank or car, and flashed up to the height of many feet, making at times a loud, roaring...