Knowlton v. Milwaukee City Ry. Co.

• Citation: 59 Wis. 278,18 N.W. 17
• Parties: KNOWLTON v. MILWAUKEE CITY RY. CO.
• Decision Date: 08 January 1884
• Court: United States State Supreme Court of Wisconsin

59 Wis. 278

18 N.W. 17

KNOWLTON

v.MILWAUKEE CITY RY. CO.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from county court, Milwaukee county.

The defendant is a corporation, and a carrier of passengers for hire, in the city of Milwaukee, in cars propelled by horses. In May, 1882, the plaintiff was a passenger in one of these cars, and when alighting therefrom was injured by the starting of the car. This happened on Sunday. This action is to recover damages for such injury. No question is raised on the pleadings. The issues tried were the negligence of the defendant, alleged by the plaintiff, and the contributory negligence of the plaintiff, alleged by the defendant, as the proximate cause of the injury complained of. The testimony, although in some respects conflicting, tends to show that the plaintiff, who had a diseased foot and leg, and walked only with crutches, wished to leave the car in which, with a friend, he had been riding, at the crossing of a certain street, and the driver stopped the car to enable him to do so. It was a closed car, with a door in the rear through which passengers passed to a platform and descended to the street on either side of the car. There was an iron railing in rear of the platform. There were two tracks at that point, about three feet apart. This car was going west on the north track. The plaintiff's lodgings were a short distance south of the crossing. His friend stepped off the platform steps on the south side, and, just as the plaintiff was about to do so, his friend told him to wait until another car coming from the west and then near them should pass. About the same time the driver of the car going west signaled the driver of the other car to stop, and he did so when the heads of the horses attached to the two cars were about opposite each other. The plaintiff then started to leave the platform, and placed his crutches on the ground for that purpose, standing on the lower step leading from the platform to the street. He had hold of the iron railing with his left hand, and stood upon his well foot, his diseased foot not resting upon anything. When in this position, and about stepping to the ground, the driver with whom he had been riding started his car, and the plaintiff was thrown to the ground with considerable violence. He retained his hold upon the iron railing and was dragged to a point opposite the rear end of the other car, and thus received the injury complained of. There was a special verdict in the form of questions and answers as follows:

“(1) Was the plaintiff thrown down, at the time and place mentioned in the complaint, by reason, among other causes, of the defendant's car being started up by the driver while plaintiff was in the act of leaving the same? Yes. (2) Was the plaintiff, at the time the car so started up, holding on the rail, standing on the step of said car, or on the ground near said step, holding on the rail? Standing on the step of said car. (3) Did the defendant stop the car for plaintiff to get off of the same, and did the plaintiff have time and opportunity to descend from said car to the ground before it started up? The defendant did stop the car, but the plaintiff did not have sufficient time to descend from said car before it started up. (4) Was the plaintiff in the exercise of ordinary care in getting off said car, and in attempting to descend from the same, at the time and place mentioned in the complaint? Yes. (5) Was the injury to the plaintiff in any manner attributable to the want of ordinary care on the part of the plaintiff, contributory thereto? No. (6) Was the injury complained of caused by any want of ordinary care on the part of the defendant or its servant, at the time and place mentioned in the complaint? Yes. (7) Do you find for the plaintiff or defendant? For the plaintiff. (8) If you find for the plaintiff, at what do you assess his damages? Four hundred dollars.” Motion for a nonsuit and for a new trial were denied, and judgment was entered for the plaintiff pursuant to the verdict. The defendant company appeals from the judgment.Austin & Runkel, for respondent, Lewis R. Knowlton.

D. G. Rogers and E. P. Smith, for appellant, Milwaukee City Ry. Co.

LYON, J.

Several questions of fact are involved in the determination of the issues of negligence made by the pleadings and evidence. The extent of the plaintiff's lameness as affecting his ability to move more or less rapidly; the speed with which the car coming from the west was moving; the nearness of the two tracks to each other, and whether the plaintiff might safely have stood between them had the cars passed each other; whether the plaintiff had reasonable opportunity to step behind the car in which he had been riding before the arrival of the other car; the proximity of the latter car when first discovered by the plaintiff; how suddenly the car which the plaintiff was leaving was started; the care exercised by the driver to ascertain whether the plaintiff was clear of the car; the imminence of the emergency in which the plaintiff was obliged to act; and perhaps other material facts, must necessarily be determined before the issues of negligence can be intelligently decided. Upon nearly all of these questions the testimony is conflicting. It would be idle to discuss the proposition that questions of negligence, the solution of which depends upon the determination of so many disputed facts, are always for the jury. They were submitted to the jury in this case, and the jury found the driver of the defendant guilty of negligence...