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

• Decision Date: 03 October 1911
• Citation: 146 Wis. 645,132 N.W. 618
• Court: Wisconsin Supreme Court
• Parties: HABECK v. CHICAGO & N. W. RY. CO.

146 Wis. 645

132 N.W. 618

HABECK

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

Supreme Court of Wisconsin.

Oct. 3, 1911.

Appeal from Circuit Court, Shawano County; John Goodland, Judge.

Action by Anna Habeck, as administratrix of Ben Habeck, deceased, against the Chicago & Northwestern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought by the plaintiff, as administratrix, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant. The deceased purchased a ticket from Shawano to Belle Plaine over the defendant's road, boarded the train at Shawano depot at about 6:45 p. m. on the 10th day of May, 1909, and was ordered off the train at Shawano Junction, about one mile distant from the Shawano depot, because he refused to deliver his ticket or pay his fare, claiming that he had neither a ticket nor money. At the request of the conductor that he must get off the train or pay his fare, he walked from his seat out of the car and got off at Shawano Junction, and after alighting proceeded to walk along the track beside the train in the direction in which it was going. He was killed at a point 2,000 feet west of Shawano Junction by a train on defendant's road some time during the evening of the 10th day of May, 1909.

The evidence tends to show that after getting off the train he proceeded west some 2,000 feet along the railroad track and was struck by defendant's train returning from Clintonville about an hour later. The proof also shows that deceased was somewhat under the influence of liquor at the time he was ordered off the train.

The main questions litigated were whether Shawano Junction is a usual stopping place authorizing the ejectment of passengers for nonpayment of fare, or whether the place was near a dwelling house within the meaning of the statute (section 1818), and whether independent of the statute the defendant was guilty of negligence in ejecting deceased under the circumstances of the case because of his condition and the distance to the nearest dwelling house, and, further, that the defendant was negligent in not keeping a lookout for deceased after ejecting him upon the right of way knowing that the train would return within about an hour. After the evidence was all in, the trial court directed a verdict for the defendant. Judgment was rendered accordingly, from which this appeal was taken.Eberlein & Eberlein, for appellant.

William G. Wheeler, for respondent.

KERWIN, J. (after stating the facts as above).

It is established by the evidence that there are mills at Shawano Junction where a great many men are employed and dwelling houses in the vicinity, the nearest to the junction and which is accessible being between 500 and 600 feet, and a number of other dwelling houses and a hotel within 60 rods; that all trains stop at the junction to open and close the switch and register; that the employés in the mills ride back and forth from Shawano to Shawano Junction, though no tickets are sold at the junction, and it is not a passenger station, nor are tickets sold from Shawano to Shawano Junction; that there is no passenger platform at the junction, but there is a platform used by the paper company for loading and unloading freight, and between this platform and the main track is a sidewalk. The evidence further shows that the conductor was informed by a passenger that deceased had a ticket, but deceased said he had no ticket and refused to produce either ticket or money, in consequence of which he was put off the train at the junction opposite or near the paper mill within the railroad yard limits where the trains always stop; that deceased had money on his person sufficient to pay his fare.

The contention of the appellant here is: (1) That Shawano Junction is not a usual stopping place nor near a dwelling house within the meaning of section 1818, Stats.; and (2) that independent of the statute, and in view of the condition of the deceased, the defendant was guilty of negligence in ejecting him and in not keeping a lookout for him thereafter. While on the part of the respondent it is insisted that there was sufficient cause for ejecting deceased, and that he was put off at a proper stopping place and near a dwelling, and that in any event the negligence of deceased was the proximate cause of the injury. It is contended by the appellant that the questions involved were jury questions upon the showing made; therefore the court erred in directing a verdict for the defendant.

[1] 1. Section 1818, Stats., provides: “If any passenger shall refuse to pay his fare it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage off the cars, on stopping the cars and using no unnecessary force, at any usual stopping place or near any dwelling house, as the conductor shall elect.”

It is undisputed that deceased refused to pay his fare, and if Shawano Junction is a usual stopping place, or near a dwelling house, within the meaning of the above statute, the conductor and servants of the defendant were justified in putting him off the train, on stopping the cars and using no unnecessary force. There is no claim that any unnecessary force was used, or that the cars were not stopped. Of course, if the statute be given a literal construction, the place in question is a usual stopping place because trains always stop there. It is perhaps true that the statute should be construed in the light of the object of the Legislature in passing it, and that cases might arise in which a place where trains usually stop would not be a usual stopping place within the meaning of this statute. Indeed, counsel for appellant does not claim that the statute should have a literal construction, but insists that we should construe the words of the statute as meaning that the stopping place referred to means a station where passengers are usually received and discharged, and at which tickets are purchased. But no reason is perceived why the court...