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

• Decision Date: 10 January 1893
• Court: Wisconsin Supreme Court
• Parties: DOWD v. CHICAGO, M. & ST. P. RY. CO.

84 Wis. 105

54 N.W. 24

DOWD

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

Supreme Court of Wisconsin.

Jan. 10, 1893.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Prudence Delphine Dowd against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought to recover damages for personal injuries received by the defendant at Allen's Grove station, on the defendant's railway, in consequence, as it is alleged, of the negligence on the part of the defendant in not providing a proper platform, hand rails, lights, etc., at said station, the absence of which, it is charged, caused the plaintiff's injuries. The station is a small one, about a mile from the village of Allen's Grove, where the plaintiff and her husband resided, and consisted of one small building, with a waiting room for passengers at the east end and a freight room at the west end; the office being between the two rooms. There was a long, low platform on and along the south side of the building, and next to the main track, called and used as a passenger platform. At the west end of the building on the north side, and northwest of the building, is a high platform on a level with the floor of a freight car, so that freight may be easily loaded and unloaded, called and used as a freight platform, and next to it, and on the north side, is a side track for the accommodation of freight business. There is an inclined platform between the freight and passenger platforms at the west end of the building, nine feet wide, sloping from the former to the latter. At the northwest corner of the freight platform there were steps extending to the ground, but there was no hand rail on the steps, nor any guard rail on the platform at the west end or north side thereof. These steps were the only means of reaching the ground at or west of the building. It was customary for persons coming to the station with teams to use these steps to get upon the platform. There are no steps at either end of the passenger platform. It extends along the main track between 200 and 300 feet, and slopes gradually to the ground, and 100 feet thereof is west of the building. The plaintiff's husband had arranged with defendant's agent for a car to ship home household furniture, etc., belonging to another party, and six horses, from Allen's Grove to Emmettsburg, Iowa, which he thought of making their home, and his contract for the carriage of the goods and horses included the carriage of the plaintiff's husband on the freight train as a part of the contract. It appeared that the platform and steps had been in the same condition for 10 or 15 years as on the occasion in question, and that the freight platform had never been lighted except when excursion trains were running. The plaintiff took a lighted lantern with her to the station that evening. She had lived at Allen's Grove, a mile from the station, about 15 years, and during that time had been up and down those stairs a dozen times, perhaps, and was frequently at the station, and knew the situation of the platforms, and had frequently got off from the train at this station, and as frequently took the train to go away. Passengers coming to take trains, or leaving trains, come up from the eastern or low end of the platform, and in leaving the station they usually take the same course. The company had stockyards at the station west of the depot, used for the purpose of shipment of live stock. Cattle and horses were usually loaded into the cars from the cattle chute. On this occasion plaintiff's husband requested to be allowed to load the horses from the high freight platform, and the station agent permitted him to make that use of it. That, according to the course of business, if the horses had been loaded into the car at the stockyards, they would have taken it from where it stood there into the train. The station agent had regular office hours, ending at 6 o'clock P. M. On this occasion, after the horses had been loaded into the car, he made out the stock contract and the receipt. That Mr. Dowd was to go along with the car, and in it, for the purpose of taking charge of the stock. The agent notified the agent at Elkhorn to have the car taken, and went home at about half past 10, having made out a way bill for the car, and put it in the bill box by the waiting-room door, so the conductor could get it when he came after the car, the agent directing the parties there to put out the light and close the waiting-room door when they went. That he bade them good night, and told them he was going home. No persons other than the plaintiff and her party appear to have been left in or about the station. The plaintiff stated that she knew the time the train was due, and went there at 10 o'clock because she had an anxiety to see the horses in the car; had never seen anything of the kind, and went down there to be with Mr. Dowd while he had to wait, and see him off, but did not go entirely out of curiosity. The “Limited Liability Live-Stock Contract” in question, for car 33,588, provided that “the parties in charge of the same, and who had signed their names in ink, were entitled under the rules to pass in charge of live stock shipped under this contract;” and the name of H. A. Dowd was entered on the contract as being so entitled to pass. “Agents and conductors were instructed not to permit any but owners of live stock or their bona fide employes to pass free, in charge of the same.” The plaintiff, with her daughter and a Mrs. Wilbur, drove to the station, arriving at about 10 o'clock, and, leaving their vehicle in a shed across the track on the north side of the track, and northwest of the station, reached the platform by the steps already described, and from thence went into the waiting room, where they remained with her friends until the train arrived, which was about 2 o'clock in the morning, when they all left the waiting room, and went to the car that contained the horses, etc., standing on the north side of the freight platform. The night was dark, and there was no moon. There were no lights about the platform or station, except in the waiting room, though there was a lamp-post on the low or passenger platform west of the station building. There were some lanterns in the party,--two or three, at least,--held by those in or about the car, near the door. There was a difference of testimony as to how much they lighted the platform at or near the steps. When they reached the car Mrs. Wilbur said good-bye to the plaintiff's husband, and started to go down the steps to the ground. It was very dark, so that she had to sit down, and feel her way down the steps. The plaintiff bade her husband good-bye, and kissed him, and started to go down the steps. Huber and McKinney, who were there and had lanterns, testified that as she turned to leave her husband she put her handkerchief to her face, as if weeping, but she denied this. She said it was so dark that she could not see where to step, or where the platform ended and the steps began, so she felt her way, but knew about where the steps were, and had used them when she came there, and was familiar with the depot building, platform, and steps. Reaching the edge of the platform, she felt for the steps with her foot, and found the step with her right foot, and just then Mrs. Wilbur, who reached the ground, told her to get across the track before the engine came along. That she glanced up the track, and thought by the sound that the engine was starting down on that track, and then she started to place her left foot on the step, but was so near the left end of it that her foot did not strike the step, and she fell to the ground, sustaining the injuries complained of. That she did not think to ask for a lantern to light her way down the steps. The train in question was strictly a freight train, carrying through freight, stopping at this station only when ordered to take in a car. as in this instance, and during a period of two years there were but two shipments from this station by this train,--one by plaintiff's husband, and another by another party. This train was not allowed to, and did not, carry passengers, and the station agent was not allowed to, and did not, sell tickets for this train, and never kept the station open for it. The only persons allowed to ride on it, other than the train men, were those who accompanied stock for the purpose of caring for it while in transit.

The defendant requested the court to direct a verdict for the defendant, but this was refused. The defendant asked the court to instruct the jury (1) that they could not find the defendant liable because of the fact that there was neither a guard nor rail upon or near the edge of the depot platform; (2) nor because of the fact that there was neither any guard nor rail to either side of the stairway or steps leading from the platform to the ground; (3) nor because it did not have a person present to warn the plaintiff of the danger of falling from said platform or steps; (4) nor because it did not have the platform and stairway lighted; (5) that the defendant, under the facts disclosed, did not owe to the plaintiff any duty in respect to the several matters above mentioned; (6) that as the plaintiff came there for her own gratification, and not by the invitation of the defendant, it owed her no active duty or care; that she was, at most, a mere licensee, and took the license with all the perils incident to it; that when she came to the depot she knew that the platform and steps were not lighted, and that in continuing there, and going therefrom, she did so with all the risks incident to an unlighted depot platform and steps, such as existed at that place at that time; (7) that it was her duty to exercise such care as was needful under the circumstances to ascertain...