Patry v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

Winslow, J.

In the opinion of this court upon the former appeal in this case it was said (Patry v. C., St. P., M. & O. R. Co. 77 Wis. 218 ): “If the plaintiff showed the. brakeman her ticket, the conductor was not justified in putting her off the train at Badger Mills, unless that was a reasonably safe and convenient point from which she could most expeditiously reach a train on the Central road.” This principle must, of course, be considered as settled in this case, and it must control unless the testimony upon this trial is materially different from that given upon the former trial in some essential particular. The appellant claims there is such a difference in the testimony, arising from the fact that the brakeman was not sworn upon this trial. We are unable to see that the absence of the brakeman’s testimony renders - the above-quoted legal proposition inapplicable. If there was still testimony in the case from which the jury could be justified in finding that the plaintiff showed her ticket to the brakeman, there would seem to be no doubt of the applicability of the proposition. We deem the plaintiff’s testimony sufficient whereon to base a finding that she showed her ticket' to the conductor or a brakeman. As this testimony is detailed in the foregoing statement of facts, it is not necessary to repeat it here. It necessarily follows that a nonsuit could not properly have been granted.

Two physicians were sworn as experts, upon the trial, as to the plaintiff’s physical condition in 1887, 1888, and 1889, and as to the probable cause of her difficulties and the probability of their being permanent. One of the physicians, Dr. Leterneau, had examined her several times, beginning in 1887; and the other, Dr. Eortier, had examined her just before the trial only. An hypothetical question *414 was asked Dr. Leterneau as to the canse of plaintiff’s sickness, wbicb assumed tó state the facts of tbe plaintiff’s experience at the time of and immediately after her expulsion from the defendant’s train. The witness was allowed to answer the question, against defendant’s objection that it did not correctly state the facts. We have examined the question and the evidence, and we think it clear that there was evidence tending to establish all the facts assumed by the question, save upon one point, and that is the age of the plaintiff. Her age was stated in the question as thirty-three years, when in fact she was twenty-nine. We do not regard this difference as essential. We cannot suppose that any different rule would apply to a woman of thirty-three years than to a woman of twenty-nine, other things being equal.

Dr. Portier testified that he heard the testimony of Dr. Leterneau, and was asked the -following question, which he answered against objection: “ Doctor, basing your opinion on the examination you made of the plaintiff and on the testimony of Dr. Leterneau, which you swear you heard, in your opinion are the injuries from which the plaintiff is- now suffering permanent or not?” This is claimed tó be error, because the question does not require the witness to assume Dr. Leterneau’s testimony to be true. It 'seems to us that the only reasonable interpretation of the question is that the witness is to assume the testimony of Dr. Leterneau to be true.. He is to lase his opinion partially upon that testimony. It is difficult to conceive how he could base an opinion upon testimony which was not assumed to be true, or, in other words, upon testimony which was assumed to be false. With this construction the question seems to be within the rule laid down in Wright v. Hardy, 22 Wis. 348 .

It is said that the question of plaintiff’s contributory negligence should have been submitted to the jury. We *415 do not see where there was any such question to submit. Although the plaintiff boarded the train by mistake, and had no ticket, the company still owed her a positive duty as to the place and manner of her expulsion, which they could not escape. If she aggravated her injury after the expulsion, by failing to take ordinary pare of herself, she could not, of course, recover for such sufferings so caused, and so the court charged the jury. This would not be contributory negligence, but negligence subsequent to the injury, tending to increase the damage.

It is said the first question and answer in the special verdict are defective, because the question is in the alternative and the answer uncertain in not stating whether it was the conductor or brakeman to whom the plaintiff showed her ticket. This objection cannot prevail. The simple question was whether she showed her ticket to a train employee whose business it was to assist passengers in the journey, and it made no difference to defendant whether it was the conductor or brakeman. The act of either was,equally the act of the defendant.

Criticism is made of the definitions of “ negligence” and of “ ordinary care ” which the court gave the jury. “ Negligence” was defined as “failure to exercise that degree of care which persons ordinarily exercise under like circumstances.” “ Ordinary care ” was defined as “ such care and prudence as may reasonably be expected of a woman of the age plaintiff was, under the circumstances in which she was placed.” The definitions are somewhat meager, perhaps, but they seem to fairly express the generally accepted legal meaning of the terms, and in the absence of a request to make them any more full are certainly not erroneous.

The fifth question of the special verdict is, “"Was negligence on the part of the defendant’s servants the proximate cause,” etc. V Appellant contends that an affirmative answer to this question is not equivalent to a finding of *416 want of ordinary care. This is true, but the court instructed the jury that the negligence spoken of in the question meant a want of ordinary care, so that in the light of this instruction an affirmative answer to the question should be held to mean a lack of ordinary care.

It is said that the verdict is excessive. We cannot say so from the evidence.

We find no error in the record.

By the Court.— Judgment affirmed.