#### Walters, Appellant, vs. The Chicago & Northwestern Railway Company, Respondent.

*January 31*—

February *18, 1902.*

*Railroads: Injuries to passengers: negligence: Slopping at stations: Passenger alighting from moving train: Contributory negligence: Court and jury.*

1. It is the duty of a passenger carrier to stop its train at stations a sufficient length of time to enable the passengers, exercising ordinary diligence, to get on or off, and unless it does so it is guilty of negligence.

2. In order to relieve a passenger carrier of negligence in starting its train before all passengers desiring to get on or off at a station have done so, it is not enough that a reasonable person, standing where the conductor did, would have been of the opinion that all who so desired had alighted; if a reasonable time has not in fact elapsed, it is negligence to start the train.

3. Ordinarily, the question 0f whether a reasonable length of time was allowed or not is a question for the jury.

*4.*Plaintiff was injured by reason of the starting of defendant’s train, upon which he was a passenger, while he was attempting to alight at a station. It appeared, among other things, that plaintiff, who was near the front door which was locked, was compelled to make his way slowly through a crowded aisle, to the rear door. *Held,*that the question whether the train stopped a sufficient length of time to enable plaintiff, in the exercise of ordinary diligence, to get off in safety, was for the jury.

5. An adult who unnecessarily steps from a train which he knows 'to be in motion is guilty of contributory negligence as a matter of law.

*3686. Plaintiff was injured while attempting to alight from defendant’s, vestibuled train. It was at night and the train had commenced to move after having stopped. Plaintiff and a companion testified that they did not know the train was moving. Other testimony was to the effect that the conductor warned them to wait and he would stop the train. The evidence as to whether plaintiff heard such warning, or could have heard it by exercising reasonable care, was conflicting. *SeM,*that the issue as to-plaintiff’s contributory .negligence should have been submitted to the jury, as it could not be said that contributory negligence was proven as matter of law.

Cassoday, C. J., dissents.

Appeal from a judgment of tbe circuit court for Dane county: K. G. SiebeceeR, Circuit Judge.

*Reversed.*

This is an action to recover for personal injuries. The plaintiff was a passenger on the south-bound vestibule passenger train upon the defendant’s road, which left the city of Madison shortly after 6 o’clock p. m., December 9, 1899, he having a ticket for the city of Oregon, where he lived. He obtained a seat in the smoking car, which was the first passenger ■ car upon the train. The car was crowded, many people standing in the pisles. When the train reached Oregon, it stopped opposite the platform, and the plaintiff, with some others,, prepared to leave the train. 'Before the plaintiff reached the' vestibule, however, at the rear of the car, the train had started, and the plaintiff stepped off on the depot platform while the train was moving, and was hurt. The plaintiff’s own evi-_ dence tended to show that he sat five or six seats from the front of the car; that when the train arrived at Oregon he started to get but, and first walked a few steps toward the front door of the car, until some passenger said that it was locked; that he then turned around, and worked his way toward the rear door, through the people standing up in the aisles, making as rapid progress as. he could, and passed into the vestibule ; that no one spoke to him that he was aware of; that he passed down the steps and stepped off, not knowing that the train was moving, and first discovered that fact when he *369struck the platform. One 0. A. Hanan was also a passenger in the smoking car, and knew the plaintiff, and was also desirous of getting off at Oregon. Hanan’s testimony was to the effect that the aisle of the car was crowded, and he (Hanan) was standing in the aisle near the forward door of the ear, and started for that door, and found that it was locked, and then turned around, and told *Walters*that he could not get out there, and *Walters*also turned around, and started for the rear door of the car about sis feet ahead of the witness; that they went along as fast as they could, and that just as he (witness) got into the vestibule *Walters*was dropping off the train; that he (witness) met a train hand in the vestibule, and the train hand reached up to pull the bell cord, . and said, “Hold on, I will stop the train;” that *Walters*was then at the foot of the steps, and witness said to him, “Hold on, *JoTm;*they will stop the train,”- but just as he said that *Walters*was stepping off; that the witness did not think that the train was moving until the train hand told him. W. T. White, the conductor of the train, testified that there were three passenger coaches and a parlor car upon the train, and that.when it reached Oregon he had just finished taking up tickets, and got off of the platform at the rear end of the train, and walked forward to the smoking car, and when he got to the rear end of the smoking car he looked to see if everybody had gotten off, and thought all had, and gave the signal to start the train, and got on the steps of the vestibule at the rear end of the smoker; that he met two or three men in the vestibule, who wanted to get off, and told them to wait a second, and he would stop the train, and stepped inside of the smoker, and pulled the bell cord, and then found that the men had got off. One H. D. Hanson testified that he was on the platform at Oregon to take this train south to the next station; that he waited until he thought that all had got off, and got on the rear end of the smoker, and as he got into *370the vestibule he met the plaintiff and another man, and this other man said, “Look out, *John!”*and the witness looked around, and did not see *Walters,*but saw only the second man on the steps; that then the conductor said, “Hold on, I will stop the train,” and pulled the bell cord, and the train stopped, and the second man got off; that Hanan spoke before the conductor did, and that the first he saw of the conductor was when he reached to pull the bell rope, and that he did not see the conductor come up the steps at all. The night was rainy, and very dark. The depot platform was 400 feet long, and was lighted by three large kerosene lamps on posts, one near each end of the platform and one near the middle; all being lighted. There were also lights in the station and a light in the roof of each vestibule. The plaintiff was well acquainted with the station and platform at Oregon.

At the close of the evidence, the court directed a verdict for the defendant, and from judgment thereon the plaintiff appeals.

For the appellant there were briefs by *Olancey, Loverud & Oilman,*and oral argument by *J. M. Olancey.*

*Edward M. Uyzer,*for the respondent.

Winslow, J.

A verdict for the defendant was directed in this case because, in the opinion of the trial court, (1) there was no evidence of negligence on the part of the railway company, and (2) the evidence conclusively showed contributory negligence on the part of the plaintiff. These claims will be considered in their order.

1. In granting the motion, the trial judge said:

> “It is without dispute that the passengers had alighted from the two coaches, so that the conductor was warranted in concluding that no more passengers were coming to alight from the train at the time he gave the signal to start, as there was none in sight upon the vestibule or upon the steps from which he could have known that other passengers were to get *371off. I think there is nothing to show that he was guilty of carelessness in giving the signal for that train to start at that ■time.”

The idea in the mind of the trial judge evidently was that if the conductor, standing on the platform, was warranted in supposing that all the passengers who wished to get off at Oregon had got off when he gave the signal to start the train, then the company was not negligent. It is very manifest that the court applied the wrong test. It may be that any reasonable person standing on the platform where the conductor did would have been of the opinion that all who desired to leave ■■at Oregon had done so, but this is not sufficient. If a reasonable time had not *in fact*elapsed to enable all passengers to get off who wished to do so, it was negligence to start the train., It is the duty of a passenger carrier to stop its train at stations a sufficient length of time to enable passengers to get on or off in the exercise of ordinary diligence, and unless it does so it is guilty of negligence. 1 Eetter, Carriers, § 66, and cases cited. This proposition was, in substance, laid down by this court in *Davis v. C. & N. W. R. Co.*18 Wis. 175, and has not been modified since that time. It was there said that it was the duty of a railway company to stop the train at the station where a passenger wishes to alight a suitable and reasonable time to enable him t'o do so, “and, if they did not, they were certainly guilty of carelessness and inattention to the lives and safety of the passengers desiring to leave the train at that place.” The authorities in support of this proposition are so numerous that it is embarrassing to attempt to name them. They will be found cited in Mr. Fetter’s work in the note to the section above cited, and in a note upon page 576, 5 Am. *&*Eng. Ency. of Law (2d ed.). Ordinarily, the question whether a reasonable length of time was allowed or not is a ■question for the jury. It will depend largely upon the surrounding circumstances, — whether there are few or many passengers, whether the cars are crowded or not, whether the *372landing place is easy or difficult, whether the passenger is vigorous and active or feeble and incumbered with parcels, and' many other circumstances which will occur to the mind. In the present case there were many circumstances present which evidently had a tendency to delay the passengers in alighting; from the train. It was crowded. The aisles were full of people standing up. Locomotion through the aisle was necessarily slow. The front door of the car seems to have been locked, so that the plaintiff and his companion,' through no-fault of their own, lost valuable time in endeavoring to get out. Altogether the evidence was ample to go to the jury upon the question whether the train stopped a sufficient length1 of time to enable passengers using ordinary diligence to get off. in safety.

2. The question of contributory negligence was also one for the jury. It is well settled that an adult who unnecessarily steps from a train which he knows to be in motion is guilty of’ contributory negligence as a matter of law. *Brown v. C., M. & St. P. R. Co.*80 *Wis. 162.*But in the present case the-plaintiff testifies that he did not know the train was moving: when he stepped off. While such a statement might well seem incredible if made twenty-five years ago, it is not so now. It is matter of common knowledge that vestibule trains, with improved couplers, and running on a first-class roadbed, frequently start so noiselessly and imperceptibly as to attract no notice, especially when the outside darkness prevents the passenger from noticing the fact by the use of his eyes. In the-present case both the plaintiff and the witness Ilanan testify that they did not know the train was in motion, and we cannot say, as matter of law, either that this testimony is incredible, or, that they were conclusively guilty of negligence in not knowing the fact. There is evidence that,the conductor met the two men in the vestibule, and said, in substance, to them,, to stop a moment, and he would stop the train. Of course,, if the plaintiff heard this, or ought, in the exercise of ordi*373nary care,' to have beard it, before be stepped from tbe train, be would be chargeable with knowledge that tbe train was in motion; but tbe testimony is quite conflicting on tbis point. Tbe plaintiff says no one spoke to bim, tbat be was aware of. Tbe witness Hanson testifies tbat Hanan spoke before tbe conductor, and said, “Hold on, *John!”*while Hanan himself says tbat just as be spoke to .Walters be was stepping off from tbe train. Altogether it cannot be said tbat contributory negligence was proven as matter of law. Tbe plaintiff-was entitled to a reasonable time to leave tbe car under tbe circumstances. His testimony and tbat of Hanan tends to show tbat they pro-needed with reasonable expedition in making their way out. The court cannot say, under tbe evidence, tbat tbe plaintiff must have known tbat tbe train was in motion, nor tbat tbe plaintiff must have beard tbe remark of tbe conductor or Hanan before be stepped off. Tbe issues in tbe case , should have gone to tbe jury.

*By the Court.*— Judgment reversed, and action remanded for a new trial.

Cassoday, C. J.

I respectfully dissent from tbe decision •of my brethren in tbis case. It is undisputed tbat tbe train contained eleven cars, including three coaches and a parlor car; tbat tbe train was crowded; tbat it reached Oregon about half past six o’clock in tbe evening; tbat tbe plaintiff rode in the smoking car, five or six seats back from tbe front door, and tbe witness Hanan was seated near him; tbat tbe cars were well lighted; tbat on approaching tbe station “Oregon!” was called out, and tbe train stopped; tbat when it stopped tbe conductor was at or near tbe rear end of tbe train; tbat be got off tbe train onto tbe platform at tbe.front end £>f tbe parlor car, — that is to say, tbe second car from tbe smoker; that several people got off tbe -train at tbat station; tbat tbe conductor walked upon tbe platform from tbe place where be got off to tbe rear end or middle of tbe smoker, and then *374partly back, — in all from ninety to 120 feet; tbat be looked', to see wbetber everybody desiring to stop at tbat station bad got off; tbat when be felt pretty sure tbat they bad be gave' tbe signal to tbe fireman.or engineer to go ahead, and tbe train started; tbat inrmp.dia.te1y after tbe train started be got onto tbe rear end of tbe smoker; tbat be tben found two or three-men, including tbe plaintiff and Hanan, wbo wanted to get off' tbe train; tbat be tben told them to wait a moment, and be would stop tbe train; or, as-Hanan states it, “Hold on, I will stop tbe traintbat tbe conductor then stepped from tbe platform into tbe car, and pulled tbe bell to stop tbe train. Oan it be fairly said tbat sucb facts tend to prove negligence on tbe part of tbe conductor ? Was be not justified in giving the-signal to start tbe train, when, so far as be could observe, all' tbe passengers wbo intended to get off bad done so ? If not, bow much longer was be required to wait before giving sucb signal ? Is be to be charged witb negligence wben be delayed' giving tbe signal until after be supposed, from appearances, tbat all bad left tbe train wbo desired to do so *%*True, the-defendant is a common carrier, and as sucb it owed a duty to-tbe plaintiff as a passenger at tbe time; but, in my judgment, it did not require tbat tbe conductor should do more than the-midisputed evidence shows tbat be did do.

“To constitute actionable negligence, tbe defendant must be guilty of some wrongful act or breach of positive duty to tbe plaintiff.” *Dowd v.*C., *M. & St. P. R. Co.*84 Wis. 116.

Besides, it appears from tbe undisputed evidence tbat the-plaintiff walked down tbe steps of tbe car without stopping, and stepped from tbe bottom step off onto tbe platform while tbe car was in motiom True, be says tbat he first discovered it was moving after be struck tbe platform, and tbat be did not know it was moving wben be left tbe step of tbe car. But be was a man fifty years of age, and we must assume tbat be-bad all bis senses, and was a man of ordinary intelligence;; *375and bence, in my judgment, be knew, or ought to bave known, that the car was in motion, when be stepped from it onto the platform. He was familiar with the station. He testified that nobody, that be was aware of, spoke to him; but be did not swear that be did not bear the conductor say, “Hold on, I will stop the trainnor that be did not bear Hanan, who was five or six feet behind him, say, “Hold on, *John;*they will stop the train.” To cast upon the defendant the burden of proving that the plaintiff did in fact know that the car was moving at the time, and that be did not bear what was so said for bis benefit, would, in my judgment, be contrary to the well-settled rule of law, and practically do away with the defense of contributory negligence in such a case. *Davis v. C. & N.*W. *R. Co.*18 Wis. 175; *Jewell v. C., St. P. & M. R. Co.*54 Wis. 610; *Brown v.*C., *M. & St. P. R. Co.*80 Wis. 162; *Shevlin v. Am. M. A. Asso.*94 Wis. 183.