#### Tarczek, by guardian *ad litem,*Respondent, vs. Chicago & Northwestern Railway Company, Appellant.

*February 1*

February *22, 1916.*

*Appeal: Verdict, when disturbed: Garriers: Railroads: When person becomes passenger: Injury at station: Defect in platform: Questions for jury: Intoxication of plaintiff: Contributory negligence: Brief stricken from files.*

1. Where a verdict is challenged in the trial court and the judge of that court deliberately approves the findings before judgment, his decision on the question is not to be disturbed unless clearly wrong.

'2. One who goes to a railway station within a reasonable time before the scheduled arrival of a train, with the *bona fide*intention of taking the train, becomes a passenger.

3. Sub. 1, sec. 1797 — 9, Stats. 1913, — requiring railway companies to keep open their passenger stations for not less than twenty minutes before the scheduled time of arrival of a passenger train and until it has departed, — is entitled to considerable weight but is not controlling in determining what constitutes a reasonable time within the meaning of the foregoing rules.

4. Whether in this case the plaintiff, who had come to the defendant’s railway station intending, as he claimed, to take a train due to arrive at 5:50 p. m., and who, while on the station platform at a time not exactly fixed but which the station agent said was about 5:20 p. m., in some way fell under the wheels of a passing freight train, was a passenger at the time of the accident, is *held*upon the evidence to have been a question for the jury.

5. It is the duty of a railway company to furnish at a station a reasonably safe platform *in view of the dangers to be apprehended;*and the dangers to be apprehended as the result of a stumble on a railway platform at a distance of four feet from a moving train are so much greater than those from a stumble on an ordinary sidewalk that the same measure of diligence cannot apply in both cases.

6. Upon evidence tending to show that plaintiff’s fall from a station platform under a moving train was caused by his stubbing his toe against a plank about four feet from the track and projecting about one and three-quarters inches above the crushed stone which formed a part of the platform next to the planking, the *439question whether the platform was reasonably safe was one for the jury.

7. Upon the evidence, stated in the opinion, it is *held*that plaintiff was not conclusively shown to have been intoxicated or to have been guilty of contributory negligence.

8. A brief in which defendant’s claim agent, a member of the bar of • this court who procured typewritten statements from several of the witnesses in the case soon after the accident, is charged with framing up a false defense, manufacturing testimony, and suborning perjury in this and other cases, — there being no foundation for the charge except the fact that the making of certain statements said to have been made to him is denied, — is stricken from the files.

Appeal from a judgment of the circuit court for Brown county; HeNey Geaass, Circuit Judge.

*Affirmed.*

Personal injuries. The plaintiff, a Eussian laborer, nineteen years of age at the time of the accident, was on the station platform at the village of Suring, Oconto county, at about 5:20 p. m. January 1, 1914, as a south-bound freight train passed the station, and in some way fell under the wheels of the train, losing his right hand and the little finger-of his left hand. He claimed that he was at the station for the purpose of talcing a south-bound passenger train which was due at 5 :50 p. m. and that he stubbed his toe on the edge of a plank in the station platform, which was raised above the rest of the platform about one and three-quarters inches, and was thus thrown under the train. The jury found by special verdict (1) that the plaintiff fell under the train on the day stated; (2) that the fall was caused by his stumbling against one of the planks of the station platform; (3) that the relation of passenger and carrier then existed between plaintiff and defendant; (4) that the platform was defective and not reasonably safe for passengers; (5) that such defective condition constituted negligence; (6) that such negligence was the proximate cause of plaintiff’s injury; (J) that the platform was also defective by reason of insufficient lighting; (8) that such defective condition constituted negligence; *440(9) that such negligence was the proximate cause of plaintiff’s injury; (10) that plaintiff was not intoxicated at the time of the injury; (11) that want of ordinary care on his part did not contribute to his injury; and that plaintiff’s damages were $7,260.

The defendant moved for judgment notwithstanding the verdict, and also to change the answers and for judgment on the verdict as corrected, but the motions were overruled, and judgment rendered for the plaintiff on the verdict, from which judgment defendant appeals.

*Edward M.*Smart, for the appellant.

For the respondent the cause was argued orally by *V. I. Minahan*and *B. A. Kaftan.*

WiNsnow, O. J.

No detail errors are alleged, but the broad contention is made that a verdict for the defendant should have been directed because the evidence showed beyond dispute that (1) the plaintiff was not a passenger, .(2) that the platform was sufficient and properly lighted, •(3) that the plaintiff was intoxicated, and (4) that he was guilty of contributory negligence.

If we were triers of the facts we think we should find much difficulty in reaching the conclusions reached by the jury, but we are not: our function is simply to ascertain whether there is any credible evidence to support the findings of the jury. In this connection it is to be remembered that where, as in this case, the verdict is challenged in the trial court and the judge of that court deliberately approves the findings before judgment, his decision on the question is not to be disturbed unless clearly wrong. *Slam v. Lake Superior T. & T. R. Co.*152 Wis. 426, 140 N. W. 30; *Lingelbach v. Theresa Village Mut. F. Ins. Co.*154 Wis. 595, 143 N. W. 688.

We shall take up the appellant’s contentions in the order indicated.

*4411. It is doubtless true that one'who goes to a railway station witbin a reasonable time before tbe scheduled arrival of a train, with-the *bona fide*intention of taking the train, becomes a passenger. 4 Elliott, Railroads (2d ed.) § 1579; *Ill. Cent. R. Co.*v. *Laloge,*113 Ky. 896, 69 S. W. 795, 62 L. R. A. 405; *Widener v. Ala. G. S. R. Co.*(Ala.) 69 South. 558.

Generally the question is one for the jury, but the circumstances may be such as to make it a question for the court. Was it a question for the court in this case? We think not. It appears by the evidence that the passenger train which the plaintiff desired to take was due at 5:50 p. m. The plaintiff came to the station and sat down in the waiting room at' about 3 p. m. A freight train was due at 3:30 p. m., but was late on the day of the accident. This was the train under which the plaintiff fell. The exact time of its arrival is not fixed by the testimony of any witness. The station agent says that it was about 5:2’0 p. m. Another witness says that he went to the station at about 5:15, but whether the witness meant that .he reached the station at that time or left his house, some blocks distant, does not appear. No other witness attempts to fix the time, and it seems evident that no one looked at a clock. It appears, however, that another man who was intending to take the passenger train, one Yakel, who was then a section foreman in the defendant’s employ, and who had been visiting relatives in the village, was getting ready to go to the station when he heard the freight train whistle and immediately went to the station, about three blocks distant, with two suitcases. The witness was having-one of his suitcases cheeked by the station agent’s assistant at the time the freight train passed the platform and the accident happened. This circumstance has considerable persuasiveness in view of the inability of any witness to fix the exact time. Yakel was a railroad man. Presumably he knew the scheduled time of the train which he expected to *442take, and be was about to go to tbe station when tbe distant whistle of tbe freight train was beard. Wlien be reached tbe station tbe proper employee was ready to and did in fact check bis baggage for the passenger train. All this seems to indicate that tbe usual preparations were being made for tbe arrival of tbe passenger train at tbe time of the accident.

Tbe appellant calls attention to sub. 1 of see. 1791 — 9, Stats. 1913, requiring railway companies to keep open their passenger stations for not less than twenty minutes before tbe scheduled time of arrival of a passenger train and until tbe train has departed, and claims that this fixes a legislative standard of reasonable time, which in tbe absence of special circumstances must be deemed controlling. This provision is certainly entitled to be considered as having considerable weight in determining tbe question, but we should be unwilling to say that it is in any sense controlling. In view of tbe uncertainty as to tbe exact time in tbe present case and the fact that at least one other prospective passenger considered that it was time to go to tbe station and prepare for departure on tbe same train, we feel unable to say that tbe question was not for tbe jury.

2. It appeared that tbe station at Suring is on the east side of tbe railway track, which runs north and south. Tbe platform consisted in part of planking and in part of crushed-stone screenings. Tbe planking consisted of five sixteen-foot planks laid side by side lengthwise next to the track and extending back from the track four feet and two inches. Tbe balance of tbe platform was of crushed-stone screenings packed down like a macadam pavement, except that in front of tbe station doors connecting planks ran from the doorstep to tbe outer planking aforesaid and at right angles therewith. Tbe defect claimed to exist in this platform was that tbe crushed stone had been worn away, or was originally at a lower level than tbe planking, so that the edge of the plank projected abruptly above the crushed stone about one inch *443and three-quarters. There was considerable testimony as to' the height and abruptness of this rise, but there was certainly testimony which would entitle the jury to find that the condition was practically that claimed to exist by the plaintiff.

It is said by the defendant that the duty of the defendant is only to provide a reasonably safe platform and that such an inequality in the platform cannot be held to make it unsafe. Many eases are cited from this and other courts holding in effect that such depressions in city sidewalks and streets are not defects within the legal meaning of that term. We do not regard these cases as controlling or particularly helpful. The carrier’s duty is to furnish a reasonably safe platform *in view of the dangers to he apprehended.*The dangers to be apprehended as the result of a stumble on a railway platform at a distance of four feet from a moving train are so much greater than the dangers to be apprehended from a stumble on the ordinary sidewalk that it is evident that the same measure of diligence cannot apply. *Crowe v. Mich. Cent. R. Co.*142 Mich. 692, 106 N. W. 395. We regard the question whether the platform in question here was reasonably safe in view of the dangers to be apprehended as properly a jury question. Our conclusion on this point renders it unnecessary to consider the question as to alleged insufficient lighting of the platform.

3 and 4. The question as to the plaintiff’s alleged intoxication and his alleged contributory negligence will be considered together. The plaintiff was a laborer, a “lumberjack” who had been working in a lumber camp. He was looking for work. On the night before the accident he stopped at a place called Mountain, fifteen miles north of Suring, and got breakfast there. He, with a companion aged thirty, left Mountain at 4 o’clock a. m., stopped at Breed, six miles north of Suring, at 8 a. m., and were next seen at Suring in the afternoon. Plaintiff claims that when he got to Suring at *444about 3 p. m. he went to the station and sat down in the waiting room, and his companion left him; that they had heard of work to be had at the next station south of Suring, about two miles south, and had determined to wait and take the train to that point, and that his partner had agreed to pay his fare; that he had fifty cents and no more in his pocket and had no dinner. It appears undisputedly that the plaintiff sat in the station drowsing until the freight train approached. He claims that at this time his companion came in and told him the train was coming; that he went out the door; that as he was going out a man told him that it was not his train, but that it would come quick; that he walked south on the platform and thought he would stand out there and wait for his train; that he struck his toe on something and fell under the train. There were several witnesses who claimed to have seen two men resembling the plaintiff and his companion drinking in saloons on the afternoon in question, and there was evidence to the effect that the plaintiff staggered as he came out of the station and that he smelled strongly of whisky when he was picked up after the accident. On the other hand, the plaintiff himself testified that he had no beer or whisky at Suring that day. The station agent and his helper both noticed the plaintiff sitting in the waiting room at about 3 p. m./and stated that he sat there until he went out to meet the train; that he was quiet and looked rational; and that neither of them saw any evidence that he was drunk or that he had liquor about him. That there were two men in a somewhat intoxicated condition on the streets and in the saloons of the village that afternoon seems quite certain from the testimony of a number of witnesses, but the fact that the plaintiff was one of them is certainly a matter of considerable doubt. If any fact is a verity in the case it is the fact that the plaintiff was sitting quietly and drowsily in the station from about 3 o’clock until about 5:20 o’clock, yet the two drunken foreigners or lumberjacks were seen by Mr. Smith, *445■superintendent of tbe Falls Manufacturing Company, on tbe main street near tbe station about *four*o’clock p. m. and sev■eral times again *within the next half or three quarters of an ■hour.*Tbis testimony seems to make it ratber more than probable that tbe plaintiff was not one of . tbe two lumberjacks wbo were seen drunk by tbe witnesses. It is to be remarked also that several of tbe witnesses were not at all sure that tbe plaintiff was one of tbe men wbom tbey saw. On tbe whole evidence we cannot say that tbe plaintiff was conclusively shown to have been intoxicated or to have been guilty •of contributory negligence.

Twelve pages of tbe respondent’s brief are devoted to abuse of tbe defendant’s claim agent, wbo procured typewritten ■statements from several of tbe witnesses in the case soon after tbe accident. Tbe agent is charged with framing up a false ■defense, manufacturing testimony,- and suborning perjury in tbis and other cases. There is no foundation for tbe charge ■except tbe fact, not infrequent, that tbe making of certain statements said to have been made to tbe claim agent is denied. Such things as are here charged could hardly be done without tbe knowledge of tbe defendant’s attorney. Both tbe claim agent and tbe defendant’s attorney are members of tbe bar of tbis court. If tbey are guilty of these things measures should be taken to rid tbe bar of their presence; if tbey are not guilty tbey have no redress. To embalm these •charges upon tbe files of tbis court in such a way that tbe accused party has no opportunity to meet them seems to us a .gross abuse of counsel’s privilege. ■ If counsel thinks bis case is aided by such tactics be is entirely mistaken. Tbe judgment is affirmed in spite of tbis breach of privilege, not because of it. Tbe brief is ordered to be stricken from tbe files.

*By the Court.*— Judgment affirmed with costs, except that no costs are to be allowed for tbe printing of respondent’s brief.