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

• Decision Date: 21 February 1905
• Citation: 102 N.W. 549,124 Wis. 243
• Court: Wisconsin Supreme Court
• Parties: TIBORSKY v. CHICAGO, M. & ST. P. RY CO.

124 Wis. 243

102 N.W. 549

TIBORSKY

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

Supreme Court of Wisconsin.

Feb. 21, 1905.

Appeal from Circuit Court, Washington County; James J. Dick, Judge.

Action by Frank Tiborsky against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action to recover damages for personal injuries sustained by the plaintiff by reason of having stumbled over a truck belonging to the defendant, and alleged to have been negligently and wrongfully left upon the public sidewalk in front of the defendant's depot platform on the evening of December 23, 1902. The answer admits the allegations of the complaint to the effect that at the times therein mentioned the plaintiff was a resident of the city of Hartford, in this state, and conducting a shoe store therein; that the defendant corporation owned and operated a railroad running through that city during all of such times; that the principal business street in that city extends from the north to the south, and is known as “Main Street,” with sidewalks constructed and maintained on each side thereof by the city, for the accommodation of the public traveling on foot; that the defendant's railroad tracks run east and west across that street at right angles with it; that the defendant's passenger station is located on its right of way immediately south of said railroad tracks, and west of said Main street; that the depot platform used in connection with said depot and said tracks also extends from said depot east and up to the sidewalk on the west side of Main street; and that the agents and employés of the defendant in the discharge of their usual and required duties were accustomed to use trucks with which to carry baggage, express matter, and other material over and upon said platform and sidewalk. The answer specifically denied the other allegations of the complaint to the effect that December 23, 1902, the defendant's agents and servants unlawfully, wrongfully, negligently, and carelessly obstructed said public sidewalk at the east end of said platform by wrongfully, negligently, and carelessly placing upon and leaving thereon, one of said trucks so being used and belonging to the defendant, and thus obstructing the sidewalk and imperiling the safety of travelers thereon at the time in question; that about 8 o'clock on that evening the plaintiff, while passing along upon that sidewalk on the west side of Main street and at the east end of said railway passenger station and platform, in the exercise of due care, was suddenly tripped by said truck, and fell over the same with great force, and was badly injured; that the night was dark and foggy, and there were no lights at or near where the truck was so located at the time; that by reason of such injury the plaintiff had suffered great and permanent damage, for which he demands judgment. The issues so joined were tried by the court and the jury, and at the close of the testimony on the part of the plaintiff the court granted a nonsuit, and from the judgment entered thereon in favor of the defendant the plaintiff brings this appeal.R. C. Russell and S. S. Barney, for appellant.

C. H. Van Alstine and H. H. Field, for respondent.

CASSODAY, C. J. (after stating the facts).

In addition to the facts alleged in the complaint and expressly admitted in the answer, as indicated in the foregoing statement, there is evidence tending to prove that the platform on the east side of the depot extended to the sidewalk on the west side of the street; that such sidewalk was about five feet wide, and came up flush with the depot platform, and was of the same width and a continuation of the street sidewalk immediately north and south of it. Passengers were in the habit of taking their baggage up to that sidewalk and shoving it onto the platform, where it would be received by the baggageman. The regular train reached the depot that evening on schedule time, 6:30 p. m., and departed at 6:38 p. m. The truck in question was about 4 1/2 feet long, 2 feet wide, and from 8 to 10 inches high when lying flat on the sidewalk. At the lower part there was a rim of steel or iron that projected out, about half an inch thick and 6 inches wide on the slant, with a blunt edge to shove under the trunk, and was as long as the truck was wide. It had two legs of iron or steel. When the truck was lying down, the rim with the blunt edge naturally projected forward, and would be about 16 inches from the ground. The truck belonged to the defendant, and was used to wheel trunks from where they were unloaded off the cars to the dray wagon, and in doing so would pass over the sidewalk in question. The baggageman left the depot that evening just after the train left. It was his duty to handle the baggage, and he received 16 pieces of baggage on the day in question, but he did not know anything about the amount of baggage in the baggage room that evening. The plaintiff was over 40 years of age at the time of the accident. Between 7 and 8 o'clock on the evening in question he started alone from his store to go up to the Catholic schoolhouse to attend church. It was so dark that he could not see anything on the walk in front of him, and it was windy. When he came by the depot, he fell over the truck standing on the Main street sidewalk, at the end of the depot platform. At first he did not know what it was that he had fallen over. It hit him in the leg--in the shins. It was about 30 feet from the depot door. He got up and went into the depot, and there found O'Neil, the night telegraph operator, and told him what had happened. They went out together, and found the truck on the sidewalk. O'Neil testified that he took the truck and put it in the baggage room, and that he did not know whether the door of that room was locked or unlocked;...