Griswold v. Chi. & N. W. Ry. Co.

• Decision Date: 23 December 1885
• Citation: 26 N.W. 101,64 Wis. 652
• Court: Wisconsin Supreme Court
• Parties: GRISWOLD v. CHICAGO & N. W. RY. CO.

64 Wis. 652

26 N.W. 101

GRISWOLD

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Filed December 23, 1885.

Appeal from circuit court, Outagamie county.Wm. Kennedy and Gabe Bouck, for respondent, Marcus P. Griswold.

Jenkins, Winkle & Smith, for appellant, Chicago & N. W. Ry. Co.

ORTON, J.

The facts in this case are substantially and briefly as follows: According to the testimony of the plaintiff, the respondent on this appeal, and other witnesses, the plaintiff went to the depot at Appleton on the morning of the sixteenth day of February, 1883, about five minutes before the trains of the appellant company arrived, at about 4 o'clock and 32 minutes, to meet his wife, whom he expected would be on the sleeper of said train on her return from New York, and to assist her off the train. The morning was dark and foggy. When the train arrived he got on the first sleeper towards Green Bay and asked the porter of the sleeper if there was a lady to get off, and he said, “May be she is in the next car,” and he then walked rapidly out of the car, and as he reached the platform of the car the train suddenly started, and he was thrown off and dragged along by the train, and much injured. His wife, Mrs. Griswold, had got off the train before he went on it, and her baggage had been taken off. The evidence was undisputed, that all the passengers who were to go on said train at that point had gone aboard, and all those who were to stop at that depot had got off, and the mail had been exchanged as well as the express matter, and all the baggage had been taken off, and everything done necessary to be done, so far as the passengers and the business of the company at that place were concerned. How long the train stopped was a matter in dispute on the trial, and whether any signal of starting was given. Neither the conductor, nor any brakeman, nor the engineer, nor any one else having anything to do with the running or management of the train, knew, or had information, that the plaintiff had gone aboard of the train, or that he was expected to go aboard of it at that time, for any purpose, and the brakeman at least knew that his wife was off the train, and needed no such assistance.

Such being the facts, the vital question in the case is whether the company owed to the plaintiff the duty of keeping the train standing still just at that time long enough so that the plaintiff could have safely left the train. In other words, was the plaintiff placed in such a relation to the company that it was the absolute duty of the company to so withhold the train for him to get off safely at that time? It is not worth while to speculate in such a case as to whether the plaintiff was a trespasser or licensee, or was on the train by invitation, but it may be conceded that he had the right to board the train for the purpose stated. He was not a passenger and the company owed him no duty as such. The company are charged with the single and only act of negligence, namely, that it started its train before the plaintiff could safely step down out of it, and thereby caused him to fall off, and to be so dragged along to his personal injury. The company certainly would not be absolutely liable for such an act in respect to the plaintiff unless he was a passenger, of whose presence on the train, and of whose getting on and off, it would be presumed to have notice, and to whom it is bound, by contract as well as by duty. Neither the company, nor its employes and servants, in the management of the train, had any notice whatever that the plaintiff was anywhere about the train. Must they not be placed in fault before they can be charged with liability? Must they not know what it is their duty to do in such an emergency, by a knowledge of the emergency itself, before they can be charged morally or legally with a breach of such duty? Negligence, unless constructiveand absolute, must depend upon the circumstances of the case, and those circumstances must be such as to create a duty which can be neglected or violated. These propositions would seem to be axiomatic and self evident. The employes, in the management of this train, knew of nothing which made it their duty to delay the train any...