McDermott v. Chi. & N. Ry. Co.

• Decision Date: 03 May 1892
• Citation: 52 N.W. 85,82 Wis. 246
• Court: Wisconsin Supreme Court
• Parties: MCDERMOTT v. CHICAGO & N. RY. CO.

82 Wis. 246

52 N.W. 85

MCDERMOTT

v.CHICAGO & N. RY. CO.

Supreme Court of Wisconsin.

May 3, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by Ellen McDermott against the Chicago & North western Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought for the recovery of damages for personal injuries sustained by the plaintiff while descending from a train of the defendant company on which the said plaintiff was a passenger, at its station in Milwaukee, caused, as alleged, by the negligence of the defendant in not providing safe or suitable appliances or means for the descent of passengers at its regular passenger station at that city, and the failure to render her personal assistance in alighting. The answer, admitting that it was a common carrier of passengers, denied any knowledge or information sufficient to form a belief as to the other allegations of the complaint, and charged the plaintiff with contributory negligence and want of care while attempting to alight from the train. The court found, upon the uncontradicted testimony, that the defendant is a corporation and common carrier, as charged in the complaint; that the plaintiff was a passenger on one of the defendant's passenger trains from Ridgeway, Iowa county, to Milwaukee, on January 22, 1890; that the rail way station at Milwaukee is not provided with raised platforms for the reception of passengers alighting from the trains, but has a floor or platform level with the tracks of the railway; that the descent from the cars is made by means of a short flight of steps leading from the platform of the car down within about 22 inches of such floor, and a movable bench about 11 inches high is placed at the foot of said short flight of steps. The plaintiff in leaving the car descended to the floor by means of said short flight of steps and said bench, and fell, and was injured. The jury found the following facts in answer to in terrogatories: (1) Said movable bench is a reasonably safe appliance for the exit of passengers from the cars of the defendant corporation, provided a brakeman or other assistant be stationed at the foot of the descent to assist passengers in alighting. (2) Such bench is not a reasonably safe appliance, in the absence of any brakeman or other assistant so stationed to assist passengers in alighting. (3) Upon the arrival of the train upon which the plaintiff was carried, the brakeman assisted all the passengers to alight by means of said short flight of steps and bench but the plaintiff and one other passenger. (4) After so doing, he left the platform, and went about his other duties, before the plaintiff and said other passenger had left the car. (5) The plaintiff delayed her exit from the car so long as to justify the brakeman in supposing all the passengers had left it. (6) It was negligence on the part of the brakeman to leave his position on said platform and bench without first ascertaining whether or not any of the passengers were still in the car, and might need his assistance in alighting. (7) The want of safety of said appliance for enabling passengers to alight from the cars, without assistance, was a proximate cause of the plaintiff's injury. (8) The failure of the brakeman to assist the plaintiff in alighting from the car was a proximate cause of such injury. (9) Said movable bench was in a reasonably safe condition. (10) Said bench was not placed in a reasonably safe position. (12) The position of said bench was a proximate cause of the plaintiff's injury. (13) The delay of the plaintiff in leaving the car, so long as to justify the belief that the car was emptied, was not a want of ordinary care on her part. (15) The defendant, its officers, agents, and employes, were guilty of negligence which was the proximate cause of her injury. (16) The plaintiff, in leaving and descending from said car, was not guilty of any negligence or any want of ordinary care on her part which proximately caused or contributed to the injury of which she complains. And the amount of the plaintiff's damages, in case of recovery, was assessed at $3,000. The court instructed the jury that if they were satisfied that the plaintiff “left the car with reasonable diligence, such as could properly be required of a passenger in her circumstances, and under all the facts and circumstances of the case, then you should find that she was not guilty of any want of ordinary care, because no other want of ordinary care is imputed to her, either in the pleadings or in the evidence; certainly not in the evidence.” The plaintiff testified, in substance, that she delayed leaving the train on account of some packages and bundles she had with her, and had chosen to wait until the other passengers had left; that she came out of the front end of the car, and, in attempting to descend to the bench, her foot slipped from the bench, and she fell back again; that she slipped on the car side of the bench, and fell on the car step, but did not go down on the floor. “The car step struck me on my side, and on my shoulder; on my right side, and on my hip. That bench was a good long step from the car steps. When I fell I did not know where my foot went. It went down between the bench and the car, but did not go over on the other side of the bench at all.” That “the step was a long way from the car;” and that she had no assistance in alighting; did not know what had become of the brakeman; that she looked for him when she came out; did not know where the conductor was; that she had always had a brakeman to help her on and off the cars, and that he usually stood at the foot of the bench; that she asked a man that she saw if he would help her down with some of her bundles, but he was not a brakeman; that he took some of the bundles, and went on, and she followed him, and, going down, she fell; that she went down the steps as carefully as she could; that “the...