Otto v. Milwaukee N. Ry. Co.
| Decision Date | 09 January 1912 |
| Parties | OTTO v. MILWAUKEE NORTHERN RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.
Action by Bertha Otto against the Milwaukee Northern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed conditionally.
Plaintiff accompanied her son, his wife and two children and the wife's sister, to assist them, particularly the wife and children, to take passage on defendant's car. All but plaintiff intended to board the first car going their way. She carried a basket in one hand and some baby clothes in the other. As a car was seen approaching she efficiently signaled it to stop. Upon the car coming to a stand the party proceeded to enter; the man carrying a grip, leading. When all were aboard but plaintiff, she stepped upon the first tread to enable her to place the basket and clothes on the platform. As she was in the act of doing, or had just done, so, the conductor not being present to assist or in sight from her location, so far as she observed, the car, without any signal having been given, suddenly started with a jerk precipitating her to the ground, breaking her arm, and considerably disturbing other members of the party.
The cause was submitted to the jury, resulting in a verdict, holding defendant liable for negligent breach of duty to plaintiff in starting the car in the manner and under the circumstances mentioned, causing injury to her without any efficient contributory fault, and assessing her damages at $2,000. Judgment was rendered accordingly.Flanders, Bottum, Fawsett & Bottum (James G. Flanders, of counsel), for appellant.
W. B. Rubin (H. B. Walmsley, of counsel), for respondent.
MARSHALL, J. (after stating the facts as above).
This is not a case within the class illustrated by Wickett v. Wis. Cent. Ry. Co., 142 Wis. 375, 125 N. W. 943, and the like, dealing with a situation created by a person entering a railroad car as a licensee to see another off on a journey, and the railroad company's servant, not knowing or having reasonable ground to anticipate the entry is with the intention of going back before the starting time, efficiently signals for the start, resulting in such person being injured in his effort to leave the car. Had respondent here reached the platform before the car started and then returned to the lower step and dropped from it by reason of the car suddenly starting, such cases might cut some figure.
Neither is the case before us within the class illustrated by Boston Elev. Ry. Co. v. Smith, 168 Fed. 628, 94 C. C. A. 84, 23 L. R. A. (N. S.) 890, and similar cases which deal with the situation of a person who has boarded a car to the platform, and the car is started with the usual disturbance so that before he has time to reach a seat he is injured by being thrown about somewhat.
Just as plainly this is not within the class illustrated by Hill v. Ry. Co., 124 Ga. 243, 52 S. E. 651, 3 L. R. A. (N. S.) 432, and the like dealing with a situation of a person who has boarded a car to see some one off and is injured in trying to leave on account of the car starting without previous signaling, as was customary, to give a person so circumstanced opportunity to return safely to the outside.
Independently of the particular location of respondent at the time the car started, precipitating her to the ground, the case is not within the class illustrated by Boston Elev. R. Co. v. Smith, supra, and the like, therein referred to, relied upon by counsel for respondent, dealing with ordinary reasonably necessary jerking of an electric car in starting; (1) because they have reference to the effect of such ordinary jerking after a person has reached the platform, whereas here the respondent was on the lower step of the car where a sudden start would naturally imperil one's safety; and, (2) because the evidence shows that there was something more than ordinary jerking. There was a violent start,--one that disturbed, abnormally, passengers who were seated.
[1] Moreover, while it may be that some years ago an electric car, ordinarily, when properly handled, started with a jerk so such movement was to be expected, that is not the case now, necessarily, since by use of modern improvements, with which the proof shows the car in question was equipped, no such violent movement of the car was necessary so far as the manipulation of the appliance itself was concerned.
[2] For the reason stated the instruction asked to the effect that the mere sudden starting of an electric car is not in itself sufficient proof of actionable negligence,--that affirmative proof is necessary of an unusual jerk, and that mere statements of the witness that the start was violent or sudden is not sufficient, so far as good law, does not apply to the case. Here the proof was that the car could be started without any jerk, but was in fact started so suddenly as to throw a seated person violently back and endanger one who was on his feet of falling unless holding to something for support.
[3] There is little use in going further by way of reviewing cases cited by either side. It is doubtful if any of them throw any light on this case as regards similarity of facts, or in principle bear on it, except by way of illustrating and declaring what is freely conceded by respondent, that it is such common custom, submitted to by passenger transportation companies, for persons to board cars to see relatives and friends off, and assist them when necessary, as in this case, that in doing so they are licensees and entitled to be treated by those in charge of cars with ordinary care.
[4] Respondent was not guilty of any want of ordinary care, as matter of law, merely because she stepped upon the lower tread of the car.
[5] Defendant is not excusable for starting the car while she was in that position because its servants had no reason to anticipate that she did not do so as a passenger. Had she been such, to have suddenly started the car while she was so circumstanced would, at the best for appellant, have admitted of a reasonable inference of want of due care, if those in charge of the car knew, or ought reasonably to have known of her situation.
[6] Obviously, it is the business of a railroad company to use reasonable diligence to discover whether a person who has stepped on a car has mounted the platform or stepped to the ground before starting. It seems there was room in the evidence for the jury to conclude that there was a fatal omission of defendant in that regard.
[7] True, respondent was badly incumbered, having neither hand free to help or save herself in case of her equilibrium being disturbed by a motion of the car or otherwise. But it cannot well be held that a person is guilty of a want of ordinary care, as matter of law, in stepping upon the lower tread of a car or proceeding to the platform with both hands engaged in carrying parcels. On the whole, it seems that there is no sound...
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Botta v. Brunner, s. A--40
...such forms of instruction should be discontinued by the trial courts.' 40 S.W.2d at page 670. And see Otto v. Milwaukee Northern Ry. Co., 148 Wis. 54, 134 N.W. 157, 160 (Sup.Ct.1912). For the reasons stated, the judgment of the Appellate Division is affirmed, except as modified. Costs to Mr......
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...its instructions of a dollar amount which the jury should not exceed in its determination has been held error. Otto v. Milwaukee Northern R. Co., 1912, 148 Wis. 54, 134 N.W. 157; Hupfer v. National Distilling Co., 1906, 127 Wis. 306, 106 N.W. 831; Jacoby v. Chicago, M. & St. P. R. Co., 1917......
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