Alford v. Chicago, Milwaukee & St. Paul Railway Co. ( 1893 )

WiNslow, J.

We think this case should have been submitted to the jury. - The plaintiff’s evidence tended to show that she started from her seat, with her baby in her arms, when the train stopped, and proceeded with reasonable diligence to the front platform, and' that while in the very act of alighting with her husband’s assistance the train started and threwT her to the ground. It is true there was evidence on the contrary, which tended to show that she did not start to leave the train until it was again in motion, and in fact jumped from the train while it was moving. But the plaintiff was entitled to have her statement of the facts passed upon by the jury. If it was a fact that she exercised due diligence in leaving the train after it stopped, and that the train started while she was obviously in the act of alighting, it is very clear that this would constitute negligence on the part of the company. Davis v. C. & W. W. R. Co. 18 Wis. 175; 2 Am. & Eng. Ency. of Law, 762. The case is not like that of Jewell v. C., St. P. & M. R. Co. 51 Wis. 610, where the passenger deliberately stepped from the train while in motion.

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