Ward v. Chi., M. & St. P. R. Co.

• Decision Date: 21 February 1899
• Citation: 102 Wis. 215,78 N.W. 442
• Court: Wisconsin Supreme Court
• Parties: WARD v. CHICAGO, M. & ST. P. R. CO.

102 Wis. 215

78 N.W. 442

WARD

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

Supreme Court of Wisconsin.

Feb. 21, 1899.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Lawrence Ward against the Chicago, Milwaukee & St. Paul Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

This was an action to recover for personal injuries suffered by the respondent while riding upon a passenger train of the appellant, The evidence showed that on the 10th day of June, 1896, the respondent, who lived at Orfordville, Rock county, in this state, bought a ticket entitling him to passage over the defendant's railway to Janesville, and return. The ticket was sold at excursion rates because upon that day there was a picnic of the association known as the “Modern Woodmen” at Janesville, and the defendant company advertised excursion rates therefor. Upon the day in question one train, comprising several cars, passed through Orfordville without stopping; but it was followed by another train, of four or five cars, which stopped, and the plaintiff got upon that train. The evidence shows that he got upon the last car of the train, and that it was somewhat crowded, both in the seats and in the aisle, but that he succeeded in getting in the inside of the car at first. After he got in, he claims that others came in, and that he gave up his place to ladies, and was forced to stand in the front doorway of the car. He further claims in his testimony that, when the train arrived at Hanover and stopped, some people came out of the car and forced him onto the platform, and that he could not return into the car; that while he was so standing upon the platform the conductor came along and took his ticket, and just after he had taken his ticket another passenger car was attached to the end of the train with such great force that it threw him from his feet, and a part of his foot was caught between the bumpers of the car on which he was standing and the car immediately ahead of it, whereby he lost several toes. The grounds of negligence claimed by the plaintiff were that the railroad furnished an insufficient number of cars, and also that the coupling was negligently and carelessly made. On the other hand, the defendant claimed contributory negligence on the part of the plaintiff in standing on the platform of the car, and denied any negligence on its part. At the close of the evidence the defendant demanded a special verdict, and submitted questions therefor; and the court, while granting the request, decided that a general verdict should be found, also, to which decision the defendant excepted. Thereupon the court submitted five questions to the jury as and for a special verdict, with some instructions adapted to each question, and then proceeded to give the jury a separate and independent charge, comprising more than eight printed pages of the record, and applicable only to a general verdict. The verdict rendered by the jury was as follows: “Were the employés of the defendant company guilty of any negligence in coupling on the car at Hanover? Ans. They were. (2) If you answer the first question in the affirmative, then was such negligence the proximate cause of the injury which the plaintiff received on the occasion in question? Ans. It was. (3) Was the plaintiff in the exercise of ordinary care at the time he received the injuries complained of? Ans. He was. (4) Was the plaintiff guilty of any negligence directly contributing to the injuries which he received? Ans. He was not. (5) What damages did the plaintiff sustain in consequence of the injuries which he received? Ans. Five hundred dollars ($500). (6) We, the jury duly impaneled to try the issue in the above-entitled action, find for the plaintiff, and assess his damages at the sum of five hundred dollars ($500).” Upon this verdict judgment was rendered for the plaintiff, and the defendant appeals.Burton Hanson and Jackson & Jackson, for appellant.

E. D. McGowan, for respondent.

WINSLOW, J. (after stating the facts).

1. It was argued in the present case that the evidence conclusively showed the plaintiff guilty of contributory negligence, because he was on the platform of the car when the accident occurred. It has been frequently held that a passenger who voluntarily and unnecessarily rides upon the platform of a railway car assumes the risks which necessarily attend that exposed position; but, on the other hand, it has also been held that a passenger is not, as matter of law, guilty of negligence in standing on the platform of cars, even while in motion, if there is no room inside; nor is such passenger required to totally disregard the courtesies of life, by violently pushing and crowding his way by main force through a crowd of people in order to reach the inside of the car. Fetter, Carr. Pass. § 167. Such a rule would make the question of negligence depend upon the brute strength of the passenger. If the car be so crowded that a reasonably prudent man would conclude that he could not get inside without unreasonably pushing and crowding his way by main force, and so would conclude to ride upon the platform, the question as to whetherhe is guilty of contributory negligence, or has assumed the extraordinary risks of that position, is one for the jury, under proper instructions. The evidence was sufficient in the present case to carry the question to the jury, under the above rule.

2. The second question of the special verdict was whether the negligence of the defendant's servants in coupling the car (if any such negligence had been proven) was the proximate cause of the plaintiff's injuries. In connection with this question the defendant asked an instruction to the effect that the jury must answer it “No,” unless they were satisfied, to a reasonable certainty, from the greater weight of evidence, that it should be answered “Yes.” This instruction was refused; nor was its substance given in the general charge. The instruction was correct, and its refusal was error. Pelitier v. Railway Co., 88 Wis. 521, 60 N. W. 250.

3. In connection with the same question the court charged the jury as follows: “The second question is: If you answer the first question in the affirmative, then was such negligence the proximate cause of the injury which the plaintiff received on the occasion in question? The word ‘proximate’ means the direct cause, and the words ‘direct cause’ are equivalent to the words ‘proximate cause.’ And, if you answer the first question in the affirmative, then you are to say whether that negligence was the proximate cause of the injury which the plaintiff received on the occasion in question. If you find that was the proximate cause, you will say it was. If you find it was not the proximate cause, you will say it was not.” Plaintiff's counsel thereupon addressed the court as follows: “I ask the court to charge the jury that the words ‘proximate cause’ have a settled legal definition, in connection with actions for negligence, and mean the immediate and inducing cause of the injury. Court: That is correct. ‘Proximate cause’ means the immediate or inducing cause of the injury. I used the word ‘direct,’ but that means the immediate and inducing cause.” The defendant duly excepted to the definitions of “proximate cause” so given, and it is clear that, under the long line of decisions in this court on that subject, such definitions were erroneous. The subject has been so recently and fully discussed by Mr. Justice Marshall in Deisenrieter v. Malting Co., 97 Wis. 279, 72 N. W. 735, that further discussion here is unnecessary.

4. The third and fourth questions asked the jury whether the plaintiff exercised ordinary care, or was guilty of contributory negligence. In connection with these questions the defendant asked the following instruction, which was refused: “A passenger taking a crowded excursion train takes it with the increased risk and diminution of comfort incident thereto, and you are to consider this proposition of law in determining your answers to the third and fourth questions.” We have been referred to no case which holds that a passenger on an excursion train is not entitled, as matter of law, to expect just as much care to be exercised for his safety as a passenger upon a regular train, and we do not think such is the law. This instruction is capable of being so construed, and hence we think it was properly refused. Doubtless a passenger, when he rides upon a crowded train, assumes the inconveniences resulting from its crowded condition, but he cannot properly be said to assume any increased risk; nor can the company be held to any less degree of care from the mere fact that the train is crowded, or the fact that it is an excursion train and not a regular train.

5. Error is assigned because the court did not submit to the jury a large number of questions presented by the defendant as a part of the special verdict. As will be seen by reference to the special verdict, the questions submitted by the court were five in number, and covered the following points: (1) Was the coupling negligently made? (2) was it the proximate cause of the injury? (3) was the plaintiff exercising ordinary care? (4) was he guilty of contributory negligence? and (5) what damages did he suffer. The court told the jury...