Marcott v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 24 October 1911
• Citation: 147 Wis. 216,133 N.W. 37
• Court: Wisconsin Supreme Court
• Parties: MARCOTT v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

147 Wis. 216

133 N.W. 37

MARCOTT

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Wisconsin.

Oct. 24, 1911.

Appeal from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Action by Simeon E. Marcott against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The complaint alleges, in substance, that on the 12th day of May, 1906, plaintiff was at the city of Minneapolis, Minn., and, being desirous of returning to his then home in Escanaba, Mich., he purchased of defendant a passenger ticket, good for transportation over defendant's line of road between said points, and he also purchased of the defendant a sleeping car ticket entitling him to a berth in a sleeping car then operated by it between Minneapolis and Escanaba; that he boarded defendant's train about 6:30 p. m. of that day, and it became and was the duty of the defendant to provide for the comfort and health of the plaintiff while so aboard defendant's said train and more particularly to protect plaintiff against the inclemency of the weather, and to keep its cars and train comfortably heated; that notwithstanding its said duty in this regard, and while its said train on which plaintiff was a passenger was passing through the state of Wisconsin, the defendant wholly neglected and refused to provide and furnish heat to its said train and cars, or to any of the cars of said train, although the wind was blowing so cold, sleet and snow were falling, and the temperature was so low and the weather so inclement as to make it dangerous to the health of plaintiff and other passengers then upon said train, because of said failure to keep its said train and cars properly heated; that because of defendant's such failure in that regard plaintiff, while on board said train, contracted typhoid pneumonia, and reached Escanaba, Mich., so sick and ailing that he was confined to his bed; that defendant's said train was delayed several hours, and plaintiff became and was much distressed, and suffered great pain on the way; that plaintiff has ever since been, and now is, an invalid because of said disease thus contracted; that plaintiff's lungs have become and are seriously and permanently diseased, and plaintiff is, as a result of the disease thus contracted, sick, sore, and permanently disabled; that plaintiff has suffered and still continues to suffer great pain bodily, and mental pain and anguish, and has been wholly disabled and prevented from earning a livelihood, and has been occasioned and will in the future be occasioned great expense for medicine and physicians, and is informed and believes that he will have to undergo severe surgical operations to preserve his life and alleviate his sufferings, to his damage in the sum of $50,000.

The answer contains a general denial and an allegation that as to whether the plaintiff was a passenger on one of defendant's trains at the time alleged defendant has no knowledge sufficient to form a belief, and therefore leaves the plaintiff to his proof in that behalf.

The jury returned the following special verdict:

“(1) Did the plaintiff become ill with pneumonia while a passenger in one of the defendant's sleepers on the night of May 12, 1906? Answer: Yes.

(2) Was said disease contracted while said plaintiff was sleeping in his berth in said car? Answer: Yes.

(3) If your answer to the second question should be ‘Yes,’ then answer this: Was said disease caused by the plaintiff, while sleeping, becoming chilled by reason of any cold and damp condition of the atmosphere in the car? Answer: Yes.

(4) If you should answer the third question ‘Yes,’ then answer this: Was the condition of said atmosphere such as to render it dangerous for healthy persons to sleep in it protected as passengers were in their berths in said car? Answer: Yes.

(5) If your answers to the third and fourth questions should be ‘Yes,’ then answer this: Ought a man of ordinary intelligence and prudence in charge of said car, as the porter was, to have reasonably anticipated that by permitting the atmosphere to become as cold and damp as it was in said car, the health of some healthy person would be injured thereby while sleeping in his or her berth? Answer: No.

(6) If you should answer the second, third, and fourth questions ‘Yes,’ then answer this: Did the temperature of said car fall below 60 degrees after the plaintiff retired and before he awakened in the chill? Answer: Yes.

(7) If you should answer the second, third, and fourth questions ‘Yes,’ then answer this: Was the chill in which the plaintiff awoke a pneumonic chill? Answer: Yes.

(8) If your answer to the second, third, and fourth questions should be ‘Yes,’ then answer this: At what amount do you assess the plaintiff's damage which resulted directly and proximately from the disease which he contracted while asleep in said car? Answer: $15,000.”

Upon motions duly made, the court changed the answers to question 2, 3, and 4 from “Yes” to “No,” and awarded judgment upon the verdict so amended in favor of the defendant. Plaintiff appealed.Martin, Martin & Martin, for appellant.

H. O. Fairchild (Alfred H. Bright, of counsel), for respondent.

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

[1] The evidence necessarily took a wide range and is quite voluminous. The questions, however, calling for a decision upon appeal, lie within a narrow compass. The first one is: Was plaintiff entitled to judgment upon the verdict returned by the jury? They found that plaintiff contracted pneumonia upon the train by becoming chilled, owing to the cold and damp condition of the atmosphere in the car; that the condition of the atmosphere was such as to render it dangerous for healthy persons to sleep in it, protected as passengers were in their berths. But they further found that a man of ordinary intelligence and prudence, in charge of the car as the porter was, ought not reasonably to have anticipated that such cold and damp condition of the atmosphere would injure the health of a healthy person sleeping in his berth. There is nothing inconsistent in these findings. They found that a dangerous condition of the atmosphere did in fact exist, but that defendant had no reason to anticipate or know that it was dangerous. To sustain liability it is not enough to show that defendant permitted a dangerous condition to exist. It must also be shown that it was negligently permitted to exist. If defendant had no reason to anticipate any injury to...