Bodenheimer v. Chi. & N. W. Ry. Co.

• Decision Date: 12 November 1909
• Citation: 140 Wis. 623,123 N.W. 148
• Court: Wisconsin Supreme Court
• Parties: BODENHEIMER v. CHICAGO & N. W. RY. CO.

140 Wis. 623

123 N.W. 148

BODENHEIMER

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Nov. 12, 1909.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by M. Bodenheimer against the Chicago & Northwestern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for a new trial.

This is an action brought to recover the value of a horse killed by one of defendant's trains through the alleged negligence of the defendant in not maintaining a suitable cattle guard on the northeasterly side of its right of way where a highway crossed the same. The questions involved were whether the horse was struck north of the cattle guard, or on the public highway, and whether any want of ordinary care on the part of the plaintiff contributed proximately to the loss of the horse. The jury found that there was no contributory negligence on the part of the plaintiff, and that the horse was not struck north of the cattle guard. The evidence was conflicting as to whether or not the horse was struck north of the cattle guard; there being evidence that he was struck on the highway south of the cattle guard, and also evidence tending to show that he was struck about 50 feet north of the cattle guard. One witness testified that he saw tracks where the horse had walked through a ditch from the pasture from which he escaped, and saw where the horse turned and crossed the cattle guard, and also tracks from the cattle guard north on the right of way about 50 or 60 feet, and saw no tracks beyond this, also found hair and a piece of bone between the place where he found the last tracks and where the horse lay, that the tracks appeared to be fresh horse tracks, and such distance apart as to indicate that the horse was walking from a point near the cattle guard northerly. The engineer on the train testified that the engine struck the horse on the highway crossing south of the cattle guard, and that at the time the train was moving at a speed of from 50 to 60 miles an hour; that there was a curve in the track as it approached the crossing, and that with the train going north he was on the inside of the curve as he approached the curve, and that he would have to be at least 500 or 600 feet south of the crossing before he could see the west rail of the track at the highway, and that the horse approached from the west and came onto the crossing and turned north, and about the time it turned north it was struck; that he practically struck the horse when he saw it, being within 100 feet of the crossing when he first saw the horse; that the curve south of the crossing was about 800 feet from the crossing, and that at 60 miles an hour the train would travel from the curve to the crossing in one or two seconds. Another witness, who was working on the track about 2,400 feet north of the crossing, testified that he saw the train as it approached, but saw no horse at the crossing nor north of it. Another witness, who was on a load of hay east of the track a little over a block from the highway crossing with nothing to obstruct the view, testified that she saw the train pass over the crossing and no horse was struck there, and that, if there had been, she would have seen it, and that her view north of the cattle guard was obstructed by bushes along the right of way. The court overruled a motion by defendant for a directed verdict.

Plaintiff duly excepted to the following portion of the charge: “Now, there is but one witness who has testified who says he positively knows what the fact is, and that is Mr. Kittel. The circumstances were such as detailed by him, as to show that he could not be mistaken. He testifies positively to a fact which he must have in his own knowledge, and he is either telling the truth, or he is willfully telling a falsehood. There is nothing improbable in his story. There is no chance for his being mistaken, and nothing to suggest any motive on his part for falsifying in reference to it--that is, there is nothing in the situation or his connection with the accident which would suggest any reason why it would be more favorable to him to have the horse struck one place or the other. Is he willfully lying when he says he struck the horse on the highway? Now, as I said, there is no testimony from any witness who claims to know positively where the horse was struck, except Mr. Kittel. The plaintiff relies upon circumstances, and those circumstances are the alleged finding of tracks north of the cattle guard which were the tracks made by this horse. Now, in considering the testimony in reference to those tracks, you have two things to consider, and the first is: Are the witnesses who testify telling the truth? They may be telling the truth, not intending to falsify as to anything, but they may be mistaken. And the next question you have to consider --Are they mistaken? Is what they saw, assuming that they are telling the truth, shown to be tracks made by this horse, or are they mistaken in reference to what they saw, in their supposition--conclusion that those...