Bremmer v. Green Bay, S. P. & N. R. Co.

• Decision Date: 23 September 1884
• Parties: BREMMER v. GREEN BAY, S. P. & N. R. CO.
• Court: Wisconsin Supreme Court

61 Wis. 114

20 N.W. 687

BREMMER

v.GREEN BAY, S. P. & N. R. CO.

Supreme Court of Wisconsin.

Filed September 23, 1884.

Appeal from circuit court, Portage county.

This action is for the value of a cow killed June 14, 1882, by a passing locomotive of the defendant on its railroad, at a point about 2,300 feet northwest of the defendant's depot, in the village of Plover. It was originally brought in justice court and taken to the circuit court on appeal. The railroad had been in operation for more than three months, but had not been fenced at the point where the cow was killed. The evidence on the part of the plaintiff tends to show that he had been in the habit of keeping his cow nights at his barn, situated on the west side of his block and fronting to the west, and which barn was a few rods north of defendant's railroad track running east from its depot, and about 700 feet east, or a very little north of east, from its depot; that the lands between the front of the plaintiff's barn and the railroad track on the south and the depot on the west, or a little south of west, were unfenced and open to the common; that the tracks of the defendant's railroad immediately west and north-west of its depot formed a Y, and that in and about the Y, and for a long distance west and north-west of the depot, and for a long distance north and west of all the tracks of the defendant's railroad, there were no fences, but the lands were wholly open to the common; that the place where the cow was killed was about 1,800 feet north-west from the depot grounds; that west and north-west of where the cow was killed was unfenced and open to the commons; that east of the track where the cow was killed was unfenced and open to the common as far as the main street, in Plover, running north and south, and which passed on the easterly side of the plaintiff's block, on the west side of which the barn was situated. The plaintiff turned his cow out into the street on the west side towards the depot about 6 o'clock A. M., June 14, 1882, but did not notice in what direction she went. She was killed the same day, about 11 o'clock A. M. At the close of the plaintiff's testimony, the defendant moved for a nonsuit, which was overruled, and the defendant excepted. Under all the testimony and the charge of the court the jury returned a verdict for the plaintiff, and judgment was entered thereon, from which this appeal is brought.

O. H. Lamereaux and A. W. Sanborn, for respondent, Phillip Bremmer.

Walter S. Larned and Theo. G. Case, for appellant, Green Bay, S. P. & N. R. Co.

CASSODAY, J.

We are precluded from considering the only objectionable portion of the charge by the failure to file exceptions or move for a new trial. After a careful examination of the evidence, however, we are inclined to hold that the plaintiff failed in one particular to establish his case, and hence that the nonsuit should have been granted. There was nothing to prevent the cow going from the plaintiff's barn onto the depot grounds, and from thence, along the defendant's...