Wickert v. Wis. Cent. Ry. Co.

• Decision Date: 05 April 1910
• Citation: 142 Wis. 375,125 N.W. 943
• Parties: WICKERT v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

142 Wis. 375

125 N.W. 943

WICKERT

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

April 5, 1910.

Appeal from Circuit Court, Marquette County; A. H. Reid, Judge.

Action by Anna Wickert against the Wisconsin Central Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Appeal from a judgment of the circuit court for Marquette county entered upon a verdict directed for defendant in an action to recover damages for personal injury caused by defendant's negligence.

Among other references cited upon the part of the appellant were the following: Townley, etc., v. C., M. & St. Paul Ry. Co., 53 Wis. 626, 11 N. W. 55;Davis v. C. & N. W. Ry. Co., 58 Wis. 646, 17 N. W. 406, 46 Am. Rep. 667;Cahill v. Layton, 57 Wis. 600, 16 N. W. 1, 46 Am. Rep. 46;Dowd v. C., M. & St. Paul Ry. Co., 84 Wis. 105, 54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917;Langhoff v. M. & P. du Chien Ry. Co., 19 Wis. 489;Powell v. Ashland I. & S. Co., 98 Wis. 35, 73 N. W. 573.

Among those cited upon the part of the respondent were the following: Griswold v. C. & N. W. Ry. Co., 64 Wis. 652, 26 N. W. 101;Ives v. Wis. Cent. Ry. Co., 128 Wis. 357, 107 N. W. 452;Morey v. Lake Superior, etc., 125 Wis. 148, 103 N. W. 271, 12 L. R. A. (N. S.) 221.D. W. McNamara, for appellant.

Walter D. Corrigan and Clifton Williams, for respondent.

TIMLIN, J.

The question presented by this appeal is whether the circuit court properly directed a verdict for defendant. In order to make out a case of actionable negligence, it must appear that the person sought to be charged therewith had knowledge that his act or omission complained of was likely to cause injury to some person or thing. This knowledge may be either actual or imputed. Knowledge of this dangerous quality of the act or omission in question is or may be imputed in a great number of instances, among them when there is a duty to know, and also when a person of ordinary care and prudence under the same or similar circumstances in the exercise of ordinary care ought to have known of this likelihood. Hasbrouck v. Armour, 139 Wis. 357, 121 N. W. 157. Like other subjects of legal investigation, these may be questions of fact, questions of law, or mixed questions of fact and law in a given case. The uncontradicted evidence in the instant case establishes the following: The sister and the niece of plaintiff, with the three children of this niece, were passengers, waiting on the depot platform for the arrival of the train which they were about to board. The plaintiff and her grown-up daughter accompanied these passengers for the purpose of seeing them off. The passenger train in question, having one passenger coach next behind the smoking car, stopped at the station, the passengers,of whom there were quite a large number alighting at this station, were descending the steps at the front end of this passenger coach, and the conductor was assisting these passengers to descend, standing with his face toward the descending passengers and toward the passenger coach. The group of seven, including the said passengers about to embark and the plaintiff and her daughter, while the conductor was so engaged stood behind him, said their farewells and exchanged parting kisses. The plaintiff's niece first, and then plaintiff's sister, ascended the steps of the smoking car to the platform of that car, from which point the niece called out to plaintiff, “Aunt, bring up the baby and the satchel.” The niece then went into the passenger car and took a seat. Plaintiff's sister remained near the door of the passenger car. Plaintiff ascended the steps of the smoking car, crossed the platform of this car and the platform of the passenger car to where her sister was standing, gave the satchel to the latter, turned and began to descend the steps of the passenger car, and had reached the second step in her descent, when the train began to move out moderately, whereupon she became dizzy, and soon fell from the steps sustaining injuries. When the...