Zilles v. Milwaukee Elec. Ry. & Light Co.

• Decision Date: 06 February 1933
• Court: Wisconsin Supreme Court
• Parties: ZILLES v. MILWAUKEE ELECTRIC RY. & LIGHT CO.

210 Wis. 564

246 N.W. 693

ZILLES

v.MILWAUKEE ELECTRIC RY. & LIGHT CO.

Supreme Court of Wisconsin.

Feb. 6, 1933.

Appeal from a judgment of the Circuit Court for Milwaukee County; A. H. Reid, Circuit Judge.

Action by John Milton Zilles against the Milwaukee Electric Railway & Light Company. From judgment for plaintiff, defendant appeals.--[By Editorial Staff.]

Affirmed.

Action to recover damages for personal injury. Judgment was entered for plaintiff, and defendant appealed.Shaw, Muskat & Paulsen, of Milwaukee, for appellant.

Hammersley & Torke, of Milwaukee, for respondent.

FRITZ, J.

Plaintiff and Sylvia Pleva (the plaintiff in a companion case (Wis.) 246 N. W. 694, which was tried with this action) were injured by falling off a trestle on defendant's right of way, after alighting, shortly after midnight, from one of defendant's interurban cars on which they had been transported as passengers. The plaintiffs relied on proof that they had never before been on the station grounds at which they alighted that night, and knew nothing about conditions at that place, excepting that a public highway was to the west of those grounds; that, when they alighted and the car departed, there was no illumination whatsoever at those grounds, and that it was so dark that one could only see the other when they were next to each other, and that they could see neither the two or three other passengers, who had also alighted, nor any physical objects, excepting the rails at their feet and a blurred outline of a fence to their left. Under those circumstances, they walked west six or eight steps along the rail to a cattle guard, which they crossed in the belief that they had been let off the car to the east of the station grounds, and therefore had to cross the cattle guard to reach those grounds. They then walked six or eight feet further and fell at the trestle, which carried the rails over the public highway, and which, because of its proximity to the station grounds, renders that locality exceedingly dangerous on a dark night in the absence of some illumination.

[1] There is an irreconcilable conflict in the evidence on the subject of whether the lights, which had been provided by the defendant at those grounds, were lit at the time of the accident. The jury found that the defendant was negligent in respect to keeping its station grounds in a safe condition for use of its patrons, and that the plaintiffs were injured as the result of that negligence. In approving that finding, the learned circuit judge said: “The question submitted was whether the defendant was negligent in respect to keeping its station grounds in safe condition. That seems to this Court to submit the exact issue, and the jury must have found the grounds unlighted, and therefore unsafe, and there is ample evidence to warrant such a finding.”

Upon reviewing the evidence, we arrive at the same conclusion, and therefore must overrule defendant's contention that the plaintiffs failed to prove any negligence.

[2][3][4][5] Defendant also contends that, although the jury found that the plaintiffs were not negligent in respect to their own safety, as a matter of law they were guilty of contributory negligence. That contention defendant bases upon the decisions in Erickson v. McKay, 207 Wis. 497, 242 N. W. 133, and DuRocher v. Teutonia Motor Car Company, 188 Wis. 208, 205 N. W. 921, 42 A. L. R. 1094. In ...