Skow v. Green Bay & W. Ry. Co.

• Decision Date: 12 November 1909
• Citation: 123 N.W. 138,141 Wis. 21
• Court: Wisconsin Supreme Court
• Parties: SKOW v. GREEN BAY & W. RY. CO.

141 Wis. 21

123 N.W. 138

SKOW

v.GREEN BAY & W. RY. CO.

Supreme Court of Wisconsin.

Nov. 12, 1909.

Appeal from Circuit Court, Jackson County; James O'Neill, Judge.

Action by Lettie Skow against the Green Bay & Western Railway Company. From a judgment for plaintiff, defendant appeals. Conditionally reversed.

This is an action for damages for personal injuries alleged to be due to the negligence of the defendant. Defendant is a railway company operating a railroad. At the time of the trial of the action plaintiff was a woman 33 years of age. She had been married for 11 years. There were no children. Prior to her marriage she had been employed as a nurse, and after her marriage she had done more or less of it during the four years she and her husband lived at Winona, Minn., during the two years they lived at Galesville in this state, and during the three years they lived in Vernon county. She had done no nursing after the removal of herself and her husband to Black River Falls, which was about four months before the injuries were received. When she went out nursing, she paid from her earnings for the help which was required to perform the household duties in her home. For a while she had run a hospital of her own at Galesville. Her earnings while nursing were from $10 to $25 per week, depending on the nature and seriousness of the illness and the ability of the patient to pay. For upwards of a year before the trial she had done no nursing, but she testified that she intended to start up a hospital in the spring. Plaintiff stated that she could not state how many months or weeks she spent in nursing, but that she went out whenever she felt like it.

The injuries were received in alighting from a passenger coach of the defendant onto the depot platform at Merrilan, Wis. The distance from the outer edge of the lowest car step to the outer edge of the depot platform was 13 5/8 inches. The depot platform was 5 3/4 inches lower than the last car step, and the distance in a direct line from the edge of the lowest car step to the edge of the platform was 14 1/2 inches. The platform was 21 5/8 inches above the level of the ground underneath. Ten days previous to the day of injury the plaintiff had entered defendant's train at this place in the daytime. The plaintiff on January 8, 1908, was a passenger on the train of the defendant from Taylor station, Jackson county, Wis., to the village of Merrilan, Wis. The train was due at Merrilan at 8 o'clock. Shortly before the train arrived at the station, the station was called, and upon arrival the plaintiff followed the conductor of the train through the door of the car onto the platform and down the steps. The evidence is in conflict as to whether or not the conductor assisted the plaintiff in stepping from the car step onto the platform, and as to whether or not the plaintiff's foot touched the platform. Plaintiff testified that she stepped into the open space between the car step and the platform; that she fell to the ground, and then forward upon the platform. Some 70 feet from the place of injury an electric light of 32 candle power was fastened by a bracket over the entrance of the Campbell hotel. There is evidence that this light was dim, and probably not more than 10 candle power. The evidence is in conflict as to whether or not the conductor carried a lantern. Aside from this lantern the electric light at the hotel entrance, which had a reflector above it to throw the light toward the place of injury, was the only light which could reach the place of injury directly. From the windows of the hotel and the depot building, which were from 59 to 70 feet from the place of injury, some light shone indirectly. The lights of the train were also burning. The evidence is that the night was dark. Plaintiff testified that the darkness prevented her from distinguishing the depot platform from the opening between it and the car step. The conductor assisted the plaintiff to arise after she had fallen, and into the waiting room of the depot. About three hours later the plaintiff took a train on another line of railroad from the same platform for her home in Black River Falls. She walked from the conveyance which had taken her from the depot to her home into the house. In the afternoon of the next day the plaintiff called her physician. He found “a swelling of the right knee; a discoloration of the knee, extending up the thigh as far as the hip of the right side”; “a swelling of the right ankle”; “a swelling of the left ankle, and evidence of severe contusion at the junction of the lower third with the upper two-thirds of the leg, and discoloration of the whole leg from the ankle to the knee”; “a slight depression into the bony tissue of this shin bone”; “a displacement backward of the womb, and considerable tenderness and swelling in the region in and about the womb and over it.” There was evidence that the displacement of the womb was probably congenital. The plaintiff lay abed for two weeks, the physician calling daily. For some time thereafter she called at the physician's office every other day. The evidence was to the effect that the displacement of the womb would require a surgical operation for its correction.

The court submitted a special verdict as follows:

“Question No. 1: Was the plaintiff injured on the 8th day of January, 1908, at the station of the defendant, while alighting from the defendant's train? Answered by the Court: Yes.

Question No. 2: Did the defendant fail to exercise ordinary care in the manner in which the platform was constructed at the point where the accident occurred to the plaintiff, in respect to the relation of the platform to the car step? Answer: Yes.

Question No. 3: If you answer the last question ‘Yes,’ then was such failure to exercise ordinary care in the construction of the platform a proximate cause of plaintiff's injuries? Answer: Yes.

Question No. 4: Did the defendant fail to exercise ordinary care in the lighting of the platform at the time and place of the accident, in that the platform was insufficiently lighted to enable a passenger in the exercise of care to descend from the car steps to the platform with reasonable safety? Answer: Yes.

Question No. 5: If you answer the last question ‘Yes,’ then was such failure to exercise ordinary care in the lighting of the platform a proximate cause of plaintiff's injuries? Answer: Yes.

Question No. 6: Was the plaintiff guilty of any want of ordinary care which proximately contributed to her injury? Answer: No.

Question No. 7: If the court shall be of opinion that plaintiff is entitled to recover, at what sum do you assess her damages? Answer: Two thousand five hundred dollars.”

The court refused to submit a special verdict of 12 questions as requested by the defendant. The special verdict which was submitted covers the questions embraced in the special verdict requested by the defendant, with the exception of 5 questions, which do not embrace any issues raised by the pleadings, and refer to mere conflicts in the evidence. Judgment was entered upon the special verdict as found for the plaintiff. This is an appeal from the judgment.

G. M. Perry, for appellant.

L. O. Ellis (S. M. Marsh, of counsel), for respondent.

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

The law is well established in the adjudications of this court that it is the...