Ellis v. Chicago, Milwaukee & St. Paul Railway Co.

MaRshalx,, J.

It seems that the decision of the trial court went upon the theory that all reasonable probabilities from the evidence indicated that appellant left the train while it was in motion and that when it stopped the opening made ready for her was at the depot platform. To sustain the judgment counsel for respondent confidently refer to Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179; O'Brien v. C., St. P., M. & O. R. Co. 102 Wis. 628, 632, 78 N. W. 1084; Wunderlich v. Palatine F. Ins. Co. 104 Wis. 395, 80 N. W. 471; Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 345, 85 N. W. 1036, and similar cases. Doubtless the learned trial court supposed that upon the evidence such cases were controlling. . That was error, as we will briefly show.

Here there is no dispute that when appellant left the train the door of the vestibule where she made her exit was not at the depot platform, and there is no serious dispute that if she testified to the truth she was entitled to recover. There was some testimony corroborating hers. There was much evidence that her story was false and that she received her injury by leaving the train before it stopped. The right of the matter depended upon whether her evidence was worthy of belief in any reasonable view thereof. There was no circumstance established beyond reasonable controversy by means of which the truth of it could be tested so as to leave no reasonable doubt in respect thereto. There was a sharp conflict between the evidence upon one side and that upon the other, as the same fell from the mouths of witnesses.. The' rulé invoked' does not apply to such a situation, as will readily be seen. It is as well stated in O’Brien v. C., St. P., M. & O. R. Co. supra, as in any of them, in this language:

“If the truth of the proposition be not within the range of probabilities, in the light of reason and common sense, in view of facts of common knowledge or facts established in the* case beyond reasonable controversy, then evidence of the existence of the fact involved does not prove such existence or tend to prove it.”

' “If the evidence of plaintiffs in this case, taking the most favorable view it will reasonably bear, including all reasonable inferences therefrom, assuming that it establishes all that it tends to establish when viewed in the light of undisputed facts, would support a verdict in plaintiffs’ favor, then the case should have been submitted to the jury for decision, and. -we should say that the evidence is sufficient for such verdict if, in view of conceded or undisputed facts on plaintiffs’ evidence, there is room for unbiased minds to reasonably differ as to where the truth lies, not regarding, in reaching that result, mere conjecture or possibility.”

Thus it will he seen that the element of facts within common knowledge or conceded or undisputed facts, may furnish a test of the truth of evidence from the mouths of witnesses, so certain in its character as to leave no reasonable probability to the contrary upon which, an honest verdict can be based. In such circumstances the unimpeached and unimpeachable circumstance so within common knowledge or so established or conceded, condemns all evidence in conflict therewith, in form as false. So it was said, in effect, in Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179, that since it is a matter of common knowledge .that a, person possessed of unimpaired sense of sight can and must neeessariliy see all objects in his immediate vicinity if he directs his attention thereto, his testimony that he did so and yet did not see such objects must necessarily be false. In Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360, the plaintiff testified that the street car which collided with his wagon was going at a speed of twenty miles an hour; that, going at such speed, the collision took place before he had an opportunity to avoid it. The fact was undisputed that neither the car nor the wagon, after the accident, showed any evidence thereof, and that the car was stopped in such a short distance after the collision as to be inconsistent with its going at more than an ordinary rate of speed shortly before the .contact. In that situation the court said:

“Where all reasonable probabilities from facts unquestionably established by the evidence are on one side of a controversy, the testimony of an interested party to the contrary does not create a conflict of evidence requiring such controversy to be submitted to a jury.”

In this case, as before suggested, there was no fact within common knowledge, and no conceded fact, and no fact established beyond reasonable controversy, rendering the evidence-of plaintiff that she did not leave her seat to alight from the car, nor alight therefrom, till it stopped, entirely unworthy of belief. The only circumstance in that regard claimed by respondent is the seventy of appellant’s injuries. True, it is-not easy to reconcile that with the car being at rest when she-stepped therefrom, but it is more difficult, it seems, to reconcile the circumstance that she was not more severely injured with the idea that she stepped from the car when it was-several hundred feet from where it stopped and was going so fast that in the fall her hat and some other articles of her property became separated from her person by 120 feet. In short the truth of the matter was determinable only by weighing the evidence on the part of appellant against that on the part of respondent, with no undisputed circumstance to throw into the balance on either side. In that situation a verdict might rest upon the uncorroborated evidence of the plaintiff if the jury under all the circumstances deemed the same to outweigh the evidence on the part of defendant so as to produce conviction to a reasonable certainty, as to the' truth respecting the proposition involved.

The trial court having reached the conclusion complained of by a misapplication of legal principles to the evidence, a new trial is unnecessary. The judgment appealed from, and the intermediate order setting aside the answers to .the special questions, should be reversed and judgment rendered upon the verdict in favor of plaintiff. The facts found by the jury show actionable negligence.’ We- cannot doubt that it is negligent for a railway company to stop its train on a dark night in an unlighted locality for passengers to alight therefrom, when in order to do so they must necessarily step down a distance so great as to imperil personal safety. Reasonable care for the convenience and personal safety of patrons of railway passenger trains demands that in boarding or alighting from cars they shall be afforded an opportunity to step from the depot platform to the lower step of the car or from such step to such platform, or that some convenience in lieu of a platform be furnished, and that in the nighttime the way to and from the cars be sufficiently lighted to enable them in the exercise of ordinary care to observe,, reasonably,-tbeir surroundings. To stop a train where persons, especially women, are compelled to pass from the lower1 step of the car to the surface of the ground without any intermediate rest is improper at any time, and actionably so under the circumstances testified to by appellant in this case and found by the jury.

By the Gourt. — The judgment and order upon which it m based are reversed, and the cause is remanded with directions to render judgment in favor of the plaintiff upon the-verdict.