#### Tiborsky, Appellant, vs. Chicago, Milwaukee & St. Paul Railway Company, Respondent.

*January 31*

February *21, 1905.*

*Railroads: Negligence: Presumption from accident: Truck, left on*. *sidewalk: Court and jury: Evidence:*Res gestae.

1. Negligence of the railway company is not to be presumed,- under the rule of *res ipsa loquitur,*from the mere fact that one walking at night on the sidewalk adjacent to a station platform was injured by falling oyer a truck belonging to the company, which had been left on the walk.

2. Upon the evidence in such a case — tending to show, among other things, that the truck was customarily used by the company’s employees at and near the place of the accident, and not showing that any one else had had anything to do with it — it is *held*that the question of the company’s negligence was one for the jury.

3. The fact that, in such case, the injured person went, immediately aftei1 the accident, into the depot and told the telegraph operator what had happened, did not make the reply of such operator admissible in evidence as part of the *res gesta:.*

Appeal from a judgment of the circuit court for Washington county: James J. Dick, Circuit Judge.

*Reversed.*

'This is an action to recover damages for personal injuries sustained by the plaintiff by reason of having stumbled over a truck belonging to the defendant, and alleged to have been negligently and wrongfully left upon the public sidewalk in front of the defendant’s depot platform on the evening of December 23,-1902.

The answer admits the allegations of the complaint to the effect that at the times therein mentioned the plaintiff was a resident of the city of Hartford, in this state, and conducting a shoe store therein; that the defendant corporation owned and operated a railroad running through that city during all of such times; that the principal business street in that city extends from the north to the south, and is known as Main street, with sidewalks constructed and maintained on each *244side thereof by the city for the accommodation of the public traveling on foot; that the defendant’s railroad tracks run east and west across that street at right angles with it; that the defendant’s passenger station is located on its *right*of way immediately south of said railroad tracks and west of said Main street; that the depot platform used in connection with said depot and said tracks also extends from said depot east and up to the sidewalk on the west side of Main street; and that the agents and employees of the defendant in the discharge of their usual and required duties were accustomed to use trucks with which to cany baggage, express matter, and other material over and upon said platform and sidewalk.

The answer specifically denied the other allegations of the complaint to the effect that December 23, 1902, the defendant’s agents and servants unlawfully, wrongfully, negligently, and carelessly obstructed said public sidewalk at the east end of said platform by wrongfully, negligently, and carelessly placing upon and leaving thereon one of said trucks so being used and belonging to the defendant, and. thus obstructing' the sidewalk and imperiling the safety of travelers thereon at the time in question; that about 8 o’clock on that evening the plaintiff, while passing along upon that sidewalk on the west side of Main -street and at the east end of said railway passenger station and platform, in the exercise of due care, was-suddenly tripped by said truck, and fell over the same with great force, and was badly injured; that the night was dark and foggy and there were no lights at or near where the truck was so located at the time; that by reason of such injury the plaintiff had suffered great and permanent damage, for which he demands judgment.

The issues so joined were tried by the court and the jury, and at the close of the testimony on the part of the plaintiff' the court granted a nonsuit, and from the judgment entered' thereon in favor of the defendant the plaintiff appeals.

*245Eor tbe appellant there was a brief by *J. 0. Bussell*and *S. 8. Barney,*and oral argument by *John M. Barney.*

Eor tbe respondent tbe cause was submitted on a brief by *E. E. Field*and *O. E. Van Alstine.*

Cassoday, C. J.

In addition to tbe facts alleged in tbe complaint and expressly admitted in tbe answer, as indicated in tbe foregoing statement, there is evidence tending to prove that tbe platform on tbe east side of tbe depot extended to tbe sidewalk on tbe west side of tbe street; that such sidewalk was about five feet wide, and came up flush with tbe depot platform, and was of tbe same width and a continuation of tbe street sidewalk immediately north and south of it.. Passengers were in tbe habit of taking their baggage up to that sidewalk and shoving it onto tbe platform, where it would be received by tbe baggageman. Tbe regular train reached the depot that evening on schedule time, 6:30 p. m., and departed at 6:38 p. m. Tbe truck in question was about four and one half feet long, two feet wide, and from eight to ten inches high when lying flat on tbe sidewalk. At tbe lower part there was a rim of steel or iron that projected out, about half an inch thick and six inches wide on the slant, with a blunt edge to shove under the trunk, and was as long as the truck was wide. It bad two legs of iron or steel. When tbe truck was lying down, tbe rim with tbe blunt edge ñaturally projected forward, and would be about sixteen inches from tbe ground. Tbe truck belonged to tbe defendant, and was used to wheel trunks from where they were unloaded off tbe cars to tbe dray wagon, and in doing so would pass over tbe sidewalk in question. Tbe baggageman left tbe depot that evening just after tbe train left. It was bis duty to handle tbe baggage, and be received sixteen pieces of baggage on tbe day in question, but be did not know anything about tbe amount of baggage in tbe baggage room that evening.

Tbe plaintiff was over forty years of age at tbe time of tbo *246accident. Between 7 and 8 o’clock on tbe evening in question be started alone from bis store to go up to tbe Catbolic schoolhouse to attend cburcb. It was so dark that be could not see anything on tbe walk in front of him, and it was windy. Wben be came by tbe depot, be fell over tbe truck standing on tbe Main street sidewalk, at tbe end of tbe depot platform. At first be did not know wbat it was that be bad fallen over. It bit bim in tbe leg — in tbe sbins. It was about thirty feet from the depot door. He got up and went into tbe depot, and there found O’Neil, the night telegraph operator, and told bim wbat bad haj)pened. They went out together, and found tbe truck on tbe sidewalk. O’Neil testified that be took tbe truck and put it in tbe baggage room, and that be did not know whether tbe door of that room was locked or unlocked; that it was not supposed to be unlocked. Tbe evidence mentioned was admitted without objection.

1. Error is assigned because tbe court took tbe case from tbe jury and granted a nonsuit. In support of such contention counsel cite a class of cases where the mere proof of the accident was held to create a presumption of negligence. *Cummings v. National F. Co.*60 Wis. 603, 18 N. W. 742, 20 N. W. 665 ; *Carroll v. C., B. & N. R. Co.*99 Wis. 399, 403, 75 N. W. 176. But such rule has its qualifications, as has repeatedly been pointed out by this court. *Spille v. Wis. B. & I. Co.*105 Wis. 340, 349, 81 N. W. 397, *Musbach v. Wis. C. Co.*108 Wis. 57, 67, 84 N. W. 36; *Beyersdorf v. Cream City S. & D. Co.*109 Wis. 456, 463, 84 N. W. 860. It is enough to say here, as to that question, that the rale mentioned is not applicable to tbe case at bar.

But it does not follow that tbe case was properly taken from tbe jury. Of course, tbe burden of proving actionable negligence was on tbe plaintiff. It is true, moreover, that tbe facts in this case are undisputed. It lias often been said that—

> “Negligence, in one sense, is a quality attaching to acts de-jiendent upon and arising out of tbe duties and relations of *247tbe parties concerned, and is as muck -a fact to be found by tke jury as tke alleged acts to wkick it attackes by virtue of suck duties and relations.” *Townley v. C., M. & St. P. R. Co.*53 Wis. 633, 11 N. W. 55; *Kaples v.*Orth, 61 Wis. 533, 21 N. W. 633; *Hart v. W. S. R. Co.*86 Wis. 489, 490, *67*N. W. 91.

It is not a conclusion to be testified to by witnesses, but an inference to be. deduced from tke facts and circumstances disclosed by tke evidence. Wken tke standard of duty is a skifting one, it is generally a question for tke jury. Id.. It is only wken tke facts and circumstances are not ambiguous, and tkere is no room for two konest and apparently reasonable conclusions, tkat tke court is justified in taking tke question from tke jury.

> “AVhen suck facts and circumstances, tkougk undisputed, are ambiguous and of suck a nature tkat reasonable men, unaffected by bias or prejudice, may disagree as to tke inference or conclusion to be drawn from tkem, tker tke case skould be submitted to tke jury.” *Kaples v. Orth,*61 Wis. 533, 21 N. W. 634.

Here tke truck was tke property of tke defendant. It was customarily used by tke defendant’s employees at and near tke place wkere it was found at tke time of tke accident. Tkat place was a public sidewalk upon wkick people on foot were liable to pass at nigkt or day, and kad tke legal rigkt to pass. It was a dark nigkt. In tke absence of knowledge to tke contrary, tke plaintiff kad tke rigkt to assume tkat tke sidewalk was a safe place upon wkick to walk. Tke presence of suck a truck upon tke walk migkt render it unsafe for travelers on foot under tke circumstances disclosed in tke evidence. Counsel for tke defendant say tkere was no testimony as to wko left tke truck upon tke sidewalk tkat evening. Tkere is some evidence tending to prove tkat tke truck was customarily used by tke defendant’s agents and employees at and near tke place of tke accident, and tkere is no evidence tending to prove tkat any one not in tke employ of tke defendant *248bad anything to do with the truck. In that respect it differs from *Stimson v. M., L. S. &*W. *R. Co.*75 Wis. 381, 383, 44 N. W. 748. After careful consideration we are constrained to hold that the evidence was sufficient to take the case to the Jury.

2. After the accident the plaintiff went into the depot, and told the night telegraph operator what had happened, as stated above. Error is assigned because the court excluded the reply of the night telegraph operator. It is claimed that such statements were admissible as a part of the res *gestae,*and counsel cite in support of such contention, among other cases, *Hooker v. C., M. & St. P. R. Co.*76 Wis. 542, 547, 44 N. W. 1085 ; *Hermes v. C. & N.*W. *R. Co.*80 Wis. 590, 592, 50 N. W. 584; *Christianson v. Pioneer F. Co.*92 Wis. 649, 653, 66 N. W. 699; *Bliss v. State,*117 Wis. 596, 94 N. W. 325; *Hupfer v. National D. Co.*119 Wis. 417, 96 N. W. 809. As stated by way of quotation from a standard text-writer in one of these cases:

> “The idea of the *res gestee*presupposes a main fact or principal transaction, and the *res gestee*mean the circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.” *Hermes v. C. & N. W. R. Co.*80 Wis. 592, 50 N. W. 585.

The declarations held to be admissible as a part of the *res gestee*in these cases were in some way connected with the main fact or transaction under consideration, and served to illustrate its character. 1 Greenl. Ev. (15th ed.) § 108. There is no dispute in the case at bar as to the plaintiff’s injury, nor as to the manner in which it occurred. The main fact here in controversy is as to whether the truck was left upon the sidewalk by the negligence of the defendant. There is no evidence tending to prove that the night telegraph operator was an actor or participant in that transaction, much less that his declarations sought to be proved were a part of the *res gestae.*There is no pretense that such declarations *249were admissible merely because tbe night telegraph operator was in the employ of the defendant. No such claim could be maintained. 1 Greenl. Ev. (15th ed.) §§ 113, 114; *Sidney S. F. Co. v.*Warsaw, 122 Pa. St. 494, 500, 15 Atl. 881; *Dorne v. Southwork Mfg. Co.*11 Cush. 205; *Fogg v. Child,*13 Barb. 246. We must hold that there was no error in excluding such declarations.

*By the Gourt.*— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.