Carey v. Chi., M. & St. P. Ry. Co.

• Decision Date: 23 September 1884
• Citation: 61 Wis. 71,20 N.W. 648
• Parties: CAREY v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

61 Wis. 71

20 N.W. 648

CAREY

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Filed September 23, 1884.

Appeal from circuit court, Wood county.

The plaintiff's cattle went upon the railroad track of the defendant company, and were run over by a passing train. Three of them were killed and another was injured. This action is to recover damages therefor. The undisputed facts, as shown by the pleadings, evidence, and special findings, are as follows:

The plaintiff resides in or near Centralia, within 100 feet of the defendant's railroad leading from Tomah to that place. The railroad was properly fenced, and such fences had been maintained for several years preceding July 21, 1883. On that day (being Saturday) a strong wind was blowing in that vicinity, and such was its force that, between a point three-fourths of a mile north of Centralia and Port Edwards,--said to be a distance of five miles,--the railroad fence was prostrated in 35 or 40 places. The defendant's section foreman in charge of that portion of its railroad ascertained, during the same afternoon, the damage so done to the fences, and on the same day and the following Monday, with three men, proceeded to clear away fallen timber and brush, and to repair the fences, as far as he could do so with the materials at hand. On the same Saturday evening he informed the roadmaster at Tomah of the destruction of the fences. The defendant's depot of lumber for erecting and repairing its fences was at Tomah, which is about 45 miles south-west of Centralia. The road-master shipped the lumber from Tomah on Monday with which to repair the fences, and it reached Centralia Monday evening. The section foreman repaired the fences the next day. A freight train ran from Tomah to Centralia on Saturday evening, and another on Sunday evening, both reaching Centralia about midnight.

The plaintiff turned his cattle at large at 5 o'clock on the same Monday evening, upon what he calls a “common.” This was a tract of uninclosed land owned in severalty by the plaintiff and others, extending from the plaintiff's residence south, along the railroad track, two miles. There were no fences between the place where the cattle were turned out and the railroad fence. The plaintiff's cattle went from his premises, across the lands of two other owners, upon the railroad track, through one of the gaps in the railroad fence caused by the falling upon it of a tree which stood on the land of one Bowles. This gap was about half a mile south of plaintiff's residence. The fence was prostrated by the storm in eight places where it abutted the uninclosed lands upon which the cattle were turned. Some of those places were north and some south of the gap through which the cattle went upon the track. During Monday night a passing train ran upon the cattle, killing three of them and injuring another. The plaintiff was at home, or in that vicinity, during the wind-storm of Saturday, and on that day or the next was informed that it had prostrated fences. He made no effort, before he turned his cattle loose, to ascertain whether the railroad fences had been blown down or injured.

The jury returned a special verdict, the substance of which is stated in the opinion. A motion for a new trial was denied, and judgment on such verdict for the plaintiff for the damages assessed by the jury was ordered and duly entered. The defendant appeals from the judgment.

J. W. Cochran and G. W. Cate, for respondent, John D. Carey.

C. W. Briggs, for appellant, Chicago, Milwaukee & St. Paul Ry. Co.

LYON, J.

A reversal of the judgment in this case is inevitable on either of two grounds.

1. The jury found specially that the plaintiff had knowledge of the storm which blew down the fences, but did not thereafter endeavor to ascertain whether the railroad fence was blown down along the uninclosed lands upon which he turned his cattle; also that he had no reason to believe or suspect, before he turned them out, that such railroad fence had been blown down, and that in so turning them out he was not guilty of negligence. The undisputed evidence is that the plaintiff knew, when he turned out his cattle, that the storm had prostrated fences. This, we think, was sufficient to put him upon inquiry as to whether the railroad fences abutting such uninclosed lands and across which the storm swept were uninjured, or whether they had been blown down. Knowing the severity of the storm, and knowing that it had prostrated fences, it cannot truthfully be said that the plaintiff had no reason to believe or suspect that such railroad fences had been prostrated. The finding in that behalf is therefore entirely unsupported by the evidence, and cannot be upheld. It should have been that the plaintiff had reason to believe or suspect that such fences had been blown down. With a proper finding in this particular it is difficult to perceive how the jury could find the plaintiff not guilty of negligence which contributed to the loss of his cattle. Had he known that the fences were down when he turned them out he would have been chargeable with contributory negligence, which would defeat a recovery for his loss. Lawrence v. M., L. S. & W. Ry. Co. 42 Wis. 322.

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