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

• Decision Date: 05 April 1882
• Citation: 12 N.W. 83,54 Wis. 610
• Parties: JEWELL v. CHICAGO, ST. P. & M. RY. CO.
• Court: Wisconsin Supreme Court

54 Wis. 610

12 N.W. 83

JEWELL

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

Supreme Court of Wisconsin.

Filed April 5, 1882.

Appeal from circuit court, St. Croix county.L. P. Wetherby, N. H. Clapp, and R. M. Bashford, for respondent.

W. E. Carter and John C. Spooner, for appellant.

CASSODAY, J.

For the purposes of this appeal, we assume that there is evidence sufficient to justify the jury in finding that the train did not stop in the first instance for a sufficient length of time to enable the plaintiff, in the exercise of due diligence, to get off the train with safety; notwithstanding the undisputed occurrences during the stoppage, as detailed by the plaintiff's own witnesses, would seem to demonstrate that a sufficient time did elapse while the train was at rest to enable the plaintiff to get off. Does the undisputed evidence show that the plaintiff was guilty of contributory negligence? The undisputed evidence shows that the train started the first time just before the plaintiff passed out of the car in which she was riding onto the front platform of the same, and that she so passed out while the train was in motion.

It also appears, from evidence which amounts to a demonstration, and which is not disputed by any direct testimony, but merely by certain inferences to be drawn from some statements of the plaintiff, and perhaps one or two of the other witnesses, that when the train stopped the second time the door of the baggage car had not passed the east end of the depot platform, and that the conductor, Pemberthy, and his sister were there near where the plaintiff subsequently fell onto the depot platform, and while there the train started the second time. That this is so seems to be overwhelmingly demonstrated by all the facts and occurrences detailed in the evidence. This being established, and the fact being evident of there being a smoking car between the baggage car and the ladies' car, it conclusively follows that, after the train started the second time, the plaintiff, on the front end of the ladies' car, moved eastward at least half the length of the baggage car and the length of the smoking car with the intervening spaces before she reached the place where she struck the depot platform. Even had there been no smoking car, as some seemed to think, yet, as the door of the baggage car was at the point named when the car started the second time, the plaintiff must thereafter have moved eastward upon the platform and steps of the ladies' car at least half the length of the baggage car and the intervening space between that and the next car before she reached the place where she struck the depot platform.

It is very certain, from Pemberthy's evidence, that when, after leaving the conductor and on his way to the west end of the depot, and when he saw the plaintiff standing on the front platform of the ladies' car, the train was moving after having started the second time. The plaintiff's theory is that after the conductor had stopped the train to get Pemberthy's trunk, and while it was standing still, and while she was in the act of passing from the steps at the front end of the ladies' car onto the depot platform, the train suddenly started, and that she was thereby thrown onto the depot platform by the jerk. Had this been so she would necessarily have fallen many feet west of where she actually did fall, for, at the very instant when the train so started the second time, and she claims she was so jerked off, the conductor and Pemberthy were on the east end of the depot platform, nearly opposite the door of the baggage car, and at or very near the very spot where all agree she subsequently landed upon the depot platform. Another difficulty with the plaintiff's theory is that had she been thrown from the steps of the car platform by the sudden starting of the train, and without any voluntary step or jump from the car onto the depot platform, as found by the jury, then she would necessarily have been thrown lengthwise of or by the side of the train, and not laterally onto the depot platform, as she was thrown. Can we say there is evidence, not in conflict with the admitted facts, tending to prove the plaintiff's theory, and sufficient to sustain a verdict to that effect?

The plaintiff concedes she was attempting to get from the car steps onto the depot platform at the instant she claims she was jerked off; so the fact of her being in the act of voluntarily stepping from the car onto the depot platform is confessed, notwithstanding the special finding of the jury to the contrary, the only dispute being whether such voluntary stepping took place while the train was at rest or in motion. The plaintiff testified, in effect, that the man who assisted her, and went out of the car ahead of her, told her not to attempt to get off the train while it was in motion, but that no one else was present or said anything to her about it. The jury, on the contrary, found that the brakeman and bystanders warned her not to get off while the cars were in motion. She concedes, in effect, that she did attempt to go down the steps, and got onto the first step, and she don't know but she got onto the second step, and that the man who assisted her was below her on the step; that she was anxious to get off the car, but was not much excited until she had stepped down onto the first step, and the train started up, when she became afraid she would be thrown off, and then tried to hold on, and became frightened. Jennie Wilson testified, in behalf of the plaintiff, in effect, that she was standing at the depot door at the time; that she did not see the plaintiff fall, because she supposed she would be killed, and so covered her eyes; that she saw the plaintiff “ on the platform when the train started the second time;” that “the platform of the car on which she stood had not got by her when the train made the second stop, but was eight or ten feet west of her; that the train had stopped, or slackened up, before it passed her, but she did not know as it stopped perfectly still. If it did, it was just for an instant, but it slacked.”

The facts stated by this witness, that the...