Wolf v. Chi. & N. W. Ry. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Wolf v. Chi. & N. W. Ry. Co., 131 Wis. 335, 111 N.W. 514 (Wis. 1907)
• Decision Date: 09 April 1907
• Parties: WOLF v. CHICAGO & N. W. RY. CO.

131 Wis. 335

111 N.W. 514

WOLF

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

April 9, 1907.

Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.

Action by A. J. Wolf, as executor of the estate of Adam Wolf, deceased, against the Chicago & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to recover damages caused to the surviving relatives of Adam Wolf by his death, claimed to have been produced by defendant's negligence.

On the 26th day of October, 1905, the deceased was a passenger on defendant's train, taking passage from Glenbeulah to Plymouth. Wis. When the train approached his destination it was about 6:30 p. m. It was raining hard and was very dark. The street arc lights that were customarily in service at such time were out. The train stopped a short distance before reaching the depot at a point where the car in which Wolf was riding stood on a trestle or bridge and about eighteen feet above the ground. Just before the train stopped the brakeman opened the front door of the car and in a loud voice called the station and then passed forward leaving the door open. When the train stopped Wolf, supposing he had arrived at his destination, arose from his seat, walked forward onto the car platform, turned to the right, and stepped off the car, when he fell to the ground below, whereby he was so injured that he died the next day. Such in substance are the allegations of the complaint, the negligence claimed being the conduct of the brakeman and the stoppage of the train, falsely indicating to Mr. Wolf that the time had arrived for him to leave it. There was an answer putting in issue the allegations of the complaint as to negligence of the defendant and raising an issue of contributory negligence on the part of the deceased.

The evidence established, or tended to establish, all the allegations of the complaint, except the closing of the door by the brakeman, and the following: A short distance before reaching the railroad station at Plymouth on the occasion in question it was necessary and customary for the train to stop on account of a railway crossing. The deceased was a man 70 years of age, who had resided for some 29 years in Plymouth. He had previously resided in Glenbeulah, some six miles to the west of Plymouth, had frequently traveled between the two places on the defendant's train, and was well aware of the custom for trains to stop before reaching the crossing, as was done in the instance in question, this, however, not referring to the calling of the station before making the stop. The railroad crossing had existed and the necessity for trains coming from Glenbeulah to stop therefor before pulling down to the station for some 24 years. Mr. Wolf was a business man of considerable experience, was well and active for one of his years, and was awake during the entire passage from Glenbeulah to the place where he left the train. His home was on the west side of the station and it was not uncommon for persons, who lived in the westerly part of Plymouth to leave the train when it stopped for the crossing. The depot at the station was lighted as usual, there being electric lights inside and two incandescent lights outside. As the train stopped Mr. Wolf left his seat, went out upon the car platform, closed the door after him, turned to the left, which was the proper course in leaving the train at the station, and stepped off into the darkness, resulting in his death as stated in the complaint. No warning was given by the brakeman after calling the station that the first stop would be at the crossing. Other passengers destined for Plymouth supposed as Mr. Wolf did that the station had been reached and accordingly started or prepared to alight, but were deterred from executing their purpose by the train starting. One person left the car at the rear before the train came to a full stop in order to take a short way to his home, as was often done by persons living in the part of town where Mr. Wolf resided. There was no proof that it was customary to call the station before the train stopped for the crossing, or that the deceased on other occasions had alighted when the train stopped for the crossing in order to take the short way to his home. There was other evidence touching questions submitted to the jury, but that already referred to is sufficient for the purposes of the appeal.

At the close of the evidence defendant's counsel moved for a directed verdict, which was denied. The cause was then submitted to the jury for a special verdict, resulting in these findings: Adam Wolf stepped from defendant's train and met his death as alleged in the complaint. When he stepped from the train the car on which he was riding was standing still. Just before the train stopped the defendant's brakeman opened the door at the front of the car and called out the station. He did not warn the passengers that the train would or had stopped on the bridge. Defendant's servant failed to use ordinary care for the safety of the passengers destined for Plymouth. Mr. Wolf understood from the calling of the station and failure to give warning to the contrary that when the train stopped it was at the station. There was then no street light burning in the vicinity. It was so dark that the exercise of ordinary care would not have brought to his attention the fact that the car was on the bridge. Tht negligence of the brakeman was the proximate cause of the death of Mr. Wolf. He was not guilty of any want of ordinary care contributing to produce his death. The damages caused to the surviving widow of Mr. Wolf are $1,250.

The defendant moved for judgment notwithstanding the verdict and plaintiff moved for judgment on the verdict. The former was denied and the latter was granted.

Edward M. Hyzer, for appellant.

M. C. Mead (Simon Gillen, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

Counsel for appellant stated this as the proposition presented by the record for decision:

“If a railroad company stops a passenger train at a railroad crossing as the train approaches a railroad station, in the nighttime, after the station has been called, without notice to the passengers that the stop is not for the station, is such conduct of the company negligent as to a passenger who is entirely familiar with local conditions?”

We cannot agree with counsel that the quoted language accurately covers the matter to be decided. It omits several circumstances which may well have had weight in the mind of the trial court in submitting the cause to the jury, and in the minds of the latter in reaching a conclusion. Some of such circumstances are the following: The station was called by the brakeman as he opened the front door of the car. He closed the door thereafter as if nothing more were to be done on his part before the time for passengers to alight. It was raining hard at the time, suggesting reasonably the closing of the door by the brakeman even though the interval between the calling of the station and the stopping of the train for passengers to alight might be brief. It was a very dark night--so dark that a person could not observe with reasonable distinctness surrounding objects outside the train or the ground at the side of the track. The arc lights which were customarily burning were not in service. There was no proof that the calling of the station was ordinarily followed by two stops, one for the crossing and the other for the station. The attitude of other passengers in the car than Mr. Wolf reason ably suggested to him the thought that the stop was at the station. There was liability, reasonably, for one circumstanced as Mr. Wolf was to be diverted in mind from attention to the fact that it was necessary to stop at the crossing before stopping at the station. We must face the situation pictured by counsel's proposition enlarged by at least all the circumstances mentioned, and from that viewpoint determine whether there was a jury question as to negligence on the part of appellant, and another as to contributory negligence on the part of the deceased.

It is suggested that the negligence alleged was not established, in that there was no proof that the brakeman left the door open after calling the station, but on the contrary the evidence shows that he closed it. True, the evidence was as claimed, but it is not considered that the allegation in that regard is essential to the cause of action. The dominant circumstances upon which negligence was predicated are that the brakeman called the station without warning passengers that there would be a stop thereafter before the one at the depot platform, the conditions being such that passengers in the exercise of ordinary care, not being so warned, were liable through excusable forgetfulness or otherwise to leave the train at the first stop and where it was dangerous to do so. The calling out of the station, as is usual, preceding the arrival at the place to step from the train, the passing forward by the brakeman immediately after making such call as if in pursuit of his duty to warn the occupants of other cars to be in readiness to alight, the coming of the train to a full stop shortly thereafter without any warning to passengers, as before stated, the darkness of the night and the unusual condition of the street arc lights being out were the main factors. There was ample proof in respect thereto to carry the case to the jury. Indeed we do not understand the learned counsel for respondent contends, aside from failure to establish all the circumstances alleged as characterizing the negligence charged which we do not deem material, but what the jury were warranted in finding negligence on the part of the appellant on the occasion in question, but it is insisted that it was not actionable fault as to the personal representatives of the deceased, because the deceased was familiar with the local...