Rowley v. Chi., M. & St. P. Ry. Co.

• Decision Date: 31 March 1908
• Citation: 135 Wis. 208,115 N.W. 865
• Parties: ROWLEY v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

135 Wis. 208

115 N.W. 865

ROWLEY

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

Supreme Court of Wisconsin.

March 31, 1908.

Appeal from Circuit Court, La Crosse County; J. J. Fruit, Judge.

Action by Lettie May Rowley against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

This is an action to recover for personal injuries received by the plaintiff, a young woman 23 years of age, while walking upon the platform in front of defendant's station building at the village of Mather, Juneau county, Wis., at about 8:30 p. m. May 10, 1906. The village has about 100 inhabitants, and the railroad passes through it in a northeasterly direction, but will be treated for convenience as running north and south. The village clusters about the station. There is one street, called “Main Street,” crossing the railroad track at right angles just north of the station, and upon the north side of the street just east of the defendant's right of way Dewey's general store is situated, which is the principal store of the village, and contains the post office. The station building stands on the right of way just south of Main street, and on the east side of the defendant's main track, and is a wooden building 36 feet in length north and south by about 20 feet in width. Between the station building and the main track is a wooden platform about 12 feet in width, slightly sloping toward the track, which extends from the south line of Main street south for a distance of about 60 feet. A cinder platform of the same width extends south from the end of the plank platform along the main track for a distance of 54 feet, and from the end of the cinder platform a cinder path runs south 220 feet to the water tank. The north part of the station building is used as a freight house, and has a large door six feet in width for the reception of freight opening on the platform. From the threshold of this door an inclined approach 6 feet in width runs down to the main platform, with a fall of eight inches in the 6 feet, so that the total fall from the door to the edge of the depot platform (a distance of 12 feet) is about 10 inches, of which 8 inches is in the first 6 feet. This incline also slopes to the right and left from the sides of the door. The depot platform and the cinder platform constitute the only walk, which is in the nature of a regularly constructed sidewalk in the village. A number of houses and buildings of various kinds front on the right of way and depot grounds, and for many years the depot platform and cinder walks, as well as the depot grounds in general, have been commonly used by the public in passing to these houses and buildings from Main street without objection by the defendant company. On the evening of the accident the plaintiff, with a young man as an escort, were walking for pleasure, and came upon the north end of the depot platform, and proceeded south the entire length of the wooden platform as well as the cinder platform and cinder path, and then returned. As they were returning, a freight train passed them going north, and as they were at a point upon the wooden platform just north of the large freight house door a large two-wheeled baggage truck ran down the incline towards the train, was struck by the train, and thrown against the plaintiff, hurling her violently against a stove which had arrived by freight and stood upon the platform near the northwest corner of the station building. There was no direct evidence tending to show in what manner the truck came to be in such a position that it would make this movement. No one was operating it at the time, and apparently it stood somewhere upon the incline, and the jar of the passing train put it in motion. The plaintiff in her complaint alleged two grounds of negligence.: (1) Negligent operation of the train at an unreasonable rate of speed; and (2) negligent placing of the truck in a position so close to the track that it came in contact with the train. But there was no evidence to support the first ground of negligence charged, and the second ground was the only one litigated. A motion to direct a verdict in favor of the plaintiff was overruled, and the court of its own motion submitted a special verdict to the jury which with the answers is as follows: “Q. 1. On and prior to the 10th of May, 1906, were grown people and children in the village of Mather accustomed continuously and frequently to pass and repass on foot for a considerabletime, without objection or with acquiescence on the part of the defendant railway company, over and across the plank platform in question from the northerly and southerly ends, respectively, of such platform along a path or way running and being near the easterly side of the company's railway track? A. Yes. Q. 2. If you answer question No. 1, ‘Yes,’ then for how many years immediately prior to May 10, 1906, had such footway travel across and on said plank platform and the path or way leading from the respective ends of such platform been continued? A. 21 years. Q. 3. If you answer question No. 1, ‘Yes,’ then was the defendant railway guilty of any want of ordinary care which proximately caused the injury to the plaintiff? A. Yes. Q. 4. If you answer question No. 3 ‘Yes,’ then was such failure to exercise ordinary care on the part of the defendant the proximate cause of the plaintiff's injury? A. Yes. Q. 5. If the court shall finally determine that the plaintiff is entitled to recover, at what sum do you assess her damages? A. $3,000.” A motion to set aside the verdict and for a new trial was granted, unless the plaintiff remitted the sum of $1,000 from the damages, which the plaintiff did, and judgment for $2,000 and costs was rendered, from which defendant appeals.

C. E. Vroman and Veeder & Veeder, for appellant.

J. T. Dithmar, for respondent.

WINSLOW, C. J. (after stating the facts as above).

1. The first contention made is that a verdict for defendant should have been directed, because the proof was undisputed that the truck was left by its employé in a perfectly safe position. The defendant had but one employé at the station, one De Long, who combined the functions of freight and passenger agent and baggage master. He testified that about half an hour before the accident he had taken the truck into the freighthouse, and unloaded therefrom three or four sacks of oats, and had then brought it out and put it between the stove standing on the platform and the west side of the freighthouse, just north of the door. In this position it could not have rolled down the platform, because it would first have to move to the south and up the incline, which would be impossible. De Long further says that he then went into the office of the depot, and remained there continuously until the accident happened, and that he authorized no one to touch it. Three young men named Parker, Griffin, and Caylor came over to the platform from Dewey's store about five minutes before the train came in, and walked south down the platform. Parker testified that as he passed the depot he noticed the truck behind the stove in the place where De Long testifies he put it. On the other hand, Griffin testified that he noticed the truck standing in front of the big door pointing towards the main track, and just about far enough from the track so that a person could walk nicely between the handles and the edge of the platform. Caylor testified that he saw no truck, that there was no truck in the path pointing towards the track nor between the stove and the track. One Nichols testified that he was walking up the track from the south, that the train passed him, and, when he was about 50 feet from the south end of the depot, he saw the truck start out from the depot and run straight out towards the train, and that it either struck the girl or the train. The plaintiff and her escort (one Strait) both testified that they saw no truck, but, as they walked back and had just passed the freighthouse door, they heard a noise, and the truck came running down the incline, struck the train, and then struck the plaintiff from behind, throwing her against the stove. This is substantially all of the evidence concerning the manner in which the accident happened. Parker testified, further, that two boys were running and playing about the stove when he passed, but there was no evidence that they did anything to the truck. The situation of the evidence must be conceded to be unsatisfactory, but certain physical facts are undisputed. The truck did run down the incline and strike the train. It could not have done so unaided if left behind the stove. No one was seen to move it. De Long was the last person shown to have...