Barton v. Pepin Cnty. Agric. Soc.

• Decision Date: 27 September 1892
• Citation: 83 Wis. 19,52 N.W. 1129
• Parties: BARTON v. PEPIN COUNTY AGRICULTURAL SOC.
• Court: Wisconsin Supreme Court

83 Wis. 19

52 N.W. 1129

BARTON

v.PEPIN COUNTY AGRICULTURAL SOC.

Supreme Court of Wisconsin.

Sept. 27, 1892.

Appeal from circuit court, Pepin county; EGBERT B. BUNDY, Judge.

Action by Stella Barton against the Pepin County Agricultural Society. From a judgment for plaintiff, defendant appeals. Reversed.S. G. Gilman, John Fraser, and W. E. Plummer, for appellant.

J. R. Mathews and C. M. Hilliard, for respondent.

ORTON, J.

Not very many of the facts in evidence in this case are necessary to be stated in order to make the rulings of the court, and the questions of law involved, intelligible. One day of the fair and races of the Pepin Agricultural Society was the 12th day of September, 1890, on their fair grounds in the city of Durand. The plaintiff, about 31 years of age, lived with her mother in said city, and on that day, in the afternoon, they came together into the fair grounds, and during the races they spent the time, until the fair closed, in and about the main building. About half an hour after the fair and races were closed for the day--about 5 o'clock P. M.--they, together with another lady, started to go towards the gate on their way homeward, and in doing so started to go over the race track, and took a few steps within the track, when the mother gave the alarm that a team was coming down the track, and led the way of the others off the track, and up close to the fence which incloses the track, when a two-horse team, hitched to a two-seated buggy, in which one William Todd, a young man about 21 years of age, was riding and driving, and two young ladies and another young man were riding, came down the track in a very fast run, and when nearly opposite to the plaintiff, standing close to the fence, turned off the track, and directly towards and against her, causing the personal injury complained of. Todd had a team of four year old colts, and after the races had closed, and more than half of the people had left the grounds, he trotted his team twice around the track, and was on his way around a third time, when his team broke into a run. He was foolish enough to whip the team, and he then lost all control over them, and they ran away. There was another team and wagon on or near the track, which caused the runaway team to turn out of the track and towards the plaintiff at the fence. The officers of the society gave the alarm, and ordered every one to clear the track, for there was a runaway team coming. But the plaintiff testified that she neither saw the team coming nor heard the alarm. There were two or three hundred people crowded together near the place of the accident, pushing their way towards the main gate to leave the grounds, and a great many were crossing over the race track back and forth, and there were several other teams going around the track at the time. The society had police officers employed during the races to keep the track clear, but they had left the grounds. It had been customary for the people to drive their teams around the track when they pleased, after the races had closed, either for pleasure or to try the speed of their horses. The track was five or six steps from the fence, where the plaintiff and her mother stood.

First. It appears very conclusively that the proximate, if not the only, cause of the injury, was the whipping of these young horses, causing them to run away, by Todd, the driver. If he had not whipped them, and had not thereby lost all control over them, it is not at all probable that they would have left the track; and it is to be presumed that he would have so driven them as to have caused no injury to any one. Second. This was the only cause of the injury. The custom, or the tacit permission of the officers of the society, for teams to be driven around the race track after the races were closed had nothing to do with this injury, for they did not cause injury to any one. Nor did they cause the injury by not preventing Todd from driving his team around the race track, because the injury was not the natural or direct consequence of his merely driving around the track, and keeping within it; and there was no reason to anticipate or expect any such result from it. The driving around the track and keeping within it by Todd neither caused the injury nor would or could have caused it. The runaway team left the track, and thereby caused the injury. Their running away was caused by...