Patry v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 21 June 1890
• Citation: 77 Wis. 218,46 N.W. 56
• Parties: PATRY v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

77 Wis. 218

46 N.W. 56

PATRY

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

Supreme Court of Wisconsin.

June 21, 1890.

Appeal from circuit court, Chippewa county.

This action was commenced in September, 1888, to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the agents and employes of the defendant company operating a train of cars upon its railroad. At the time of the alleged injury (November 14, 1885) the plaintiff resided 8 miles from Boyd, a station on the Wisconsin Central Railroad, understood to be about 18 miles east or north-east of Chippewa Falls. She was then 33 years old, was a healthy woman, and had a husband and several children. On the morning of the day last aforesaid, she purchased a ticket on said Central Railroad to Eau Claire and return, and went to Eau Claire on that railroad. She had with her two of her children,--a girl 6 years old, and another 18 months old. The Central road going from Boyd to Eau Claire passes through Chippewa Falls, and a flag-station called Badger Mills, about midway between Eau Claire and Chippewa Falls, and distant some five or six miles from each of those places. The railroad of the defendant company (which for convenience will be called the “Omaha Road”) extends from Eau Claire to Chippewa Falls, and beyond. It is understood that the two companies occupy the same depot in common at Eau Claire. At Badger Mills the two roads are within 20 feet of each other, but at Chippewa Falls the two depots were a considerable distance apart at that time. The Omaha road from the latter point diverges from the Central road to the north-west, and does not go to Boyd. About noon of November 14, 1885, the plaintiff went to the depot at Eau Claire, and upon a train on the Omaha road, going north to Chippewa Falls and beyond. She testified that, as she went upon the train, she showed the conductor thereof her return ticket on the Central road, and he assisted her to go upon the train with her children. Her counsel concedes, however, that this was a brakeman, instead of the conductor. The conductor testified that he did not see the plaintiff until after the train started. The brakeman testified that he saw the plaintiff at the train, and asked her if she was going to Chippewa Falls, and she answered, “Yes;” also, if she had a ticket on the Omaha, to which she answered, “Yes;” and that he then assisted her to go upon the train. He further testified that he did not require her to show her ticket, as he should have done, because she was burdened with her children and several bundles, and he thought it would be inconvenient for her to do so. Soon after the train left Eau Claire, the conductor called upon the plaintiff for her ticket, and she presented to him her return ticket to Boyd on the Central road. He did not retain it. The plaintiff testified that he said nothing to her, or nothing she understood. It appears that the plaintiff is a French woman, and could neither speak nor understand the English language. She further testified that, when the train stopped at Badger Mills, the conductor took her little girl by the hand and led her out of the car. She followed them, and he helped her off the cars with her children and bundles, saying nothing to her, and the train moved on. The conductor testified that when plaintiff presented her ticket he told her he could not honor it, and she would have to pay her fare to Chippewa Falls, and that she said in broken English she had no money; that he told her if she had no money, she had better get off at Badger Mills, and take the Central train there, on account of the location of the depots at Chippewa Falls, because at the latter place she would require money to get to the Central depot. The brakeman testified that, by direction of the conductor, he assisted her to get off the train with her children and packages. Badger Mills was a flag station for both roads. Up to the preceding February, the Central company kept a man there to flag trains on that road when there were passengers for such trains. At that time the flagman died, after which either his widow, or persons who desired to go upon the road, would flag approaching trains. The Central company had a depot there, but it was closed. There was also a dwelling-house near the depot and tracks, which, at the time the plaintiff was left there, was occupied as a residence by the widow of the flagman, but at that particular time she was absent a few hours at the house of her son, half a mile distant, and her house was closed and locked during the time plaintiff was there. The depot was also closed and fastened. The only other building there was an open shed. There were several other dwelling-houses within about half a mile of the depot, but none in sight of it. The weather seems to have been quite cold and inclement, and the plaintiff and her children were not very warmly clad. She tried to get into the depot and into the dwelling house, but failed. She went into the shed, but afterwards left it and wandered up and down the track looking for assistance. She wrapped her shawl about her infant to keep her from freezing. She was greatly frightened by her situation, and feared they would all perish. After she had been there about an hour,--perhaps a little less,--a gentleman came along the track to where she was. She could not make him understand her by talking to him, but showed him her return railroad ticket, which explained to him the situation. He humanely remained with her until a train from Eau Claire upon the Central road approached. He flagged and stopped it, and put her and her children on board of it. It is a matter of regret that the name of this gentleman is not disclosed, for it would be a pleasure to record it here. When the plaintiff got on the train her infant was chilled almost or quite to the point of insensibility, but the conductor and a lady passenger soon restored it by rubbing its limbs, and it does not appear that any bad results followed. The plaintiff met her husband at Boyd. She was very ill, but was so far restored by stimulants or warm drinks that she was able to ride home in a wagon the same evening. The testimony shows that she was seriously ill after that time for many days, and tends to show that she still suffers from the shock to her nervous system. She was five months advanced in pregnancy at the time, but had no miscarriage, and it does not appear that the child of which she was delivered four months later was injured by her exposure. The conductor of the Omaha train, who thus left the plaintiff at Badger Mills, testifies that shortly thereafter the company questioned him concerning the affair, and the brakeman testifies that he was asked about...