DeCker v. McSorley

• Decision Date: 20 June 1901
• Citation: 86 N.W. 554,111 Wis. 91
• Parties: DECKER v. MCSORLEY.
• Court: Wisconsin Supreme Court

111 Wis. 91

86 N.W. 554

DECKER

v.MCSORLEY.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action by Walter W. Decker, administrator, against Johanna McSorley. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action by the plaintiff, as administrator of the estate of one Blair Decker, deceased, to recover damages for the death of said Blair Decker; such death having resulted from the kick of a horse owned by the defendant. The evidence showed that the accident happened upon Caledonia street, in the city of La Crosse; that Blair Decker, the deceased, was a boy 4 1/2 years of age, and was the son of the plaintiff; that on the morning of September 23, 1899, a horse owned by the defendant was grazing on Caledonia street, in the city of La Crosse, unattended and not tethered; that the place where the horse was grazing was in front of a lot owned by the defendant and occupied by a tenant; that the plaintiff and his family lived on the same street, at a short distance from the place where the horse was grazing; and that at some time between 8 and 9 o'clock a. m. upon the date mentioned the deceased came along the street alone and passed close by the horse, and while he was doing so the horse turned and kicked him in the head, inflicting injuries from which he died a few days later. The complaint alleged that there was an ordinance of the city of La Crosse, in force, prohibiting animals from running at large in the public streets, and also that the horse was vicious in his disposition, and known to be so by the defendant, and that she negligently permitted the horse to run at large in the public street, and that the death of the deceased was the result of such negligence. The complaint further alleged that the deceased was a strong, healthy boy, and that the plaintiff and his wife were entitled to and dependent upon his services. The answer admitted the death of the boy and the relationship of the parties, as well as the due appointment of the plaintiff as administrator, and denied all the other allegations of the complaint. A special verdict was rendered in the action as follows: “(1) Was the defendant's horse running at large in the streets of the city of La Crosse at the time of the alleged injury? Yes. (2) In case you answer question No. 1 in the affirmative, then was the defendant negligent in permitting the horse to be at large at the time of the injury to the deceased child? Yes. (3) In case you answer question No. 2 in the affirmative, then was such negligence the proximate cause of the death of the child? Yes. (4) At the time of the alleged injury, was the horse feeding in the public highway upon lands owned by the defendant? By the Court: Yes. (5) Were the parents of the deceased child guilty of any want of ordinary care which in any way contributed to the injury? No. (6) Had the defendant's horse any propensity to kick or bite? No. (7) If you answer question 6 in the affirmative, then had the defendant ever any knowledge or information of any such propensity on the part of the horse to kick or bite? No. (8) Was section 1 of Ordinance 21 of the city of La Crosse in force on the 23d day of September, 1899? By the Court: Yes. (9) In case you find the plaintiff is entitled to recover under the law, at what sum do you assess his damages? One thousand dollars.” Judgment for the plaintiff was rendered upon the verdict, and the defendant appeals.

Paul W. Mahoney, Thomas Morris, and Higbee & Bunge, for appellant.

Bleekman, Bloomingdale & Bergh, for respondent.

WINSLOW, J. (after stating the facts).

The plaintiff predicated his claim of negligence on the part of the defendant in this case upon two grounds: First, on the ground that the horse was permitted to be at large in the street, in violation of the terms of an ordinance of the city of La Crosse; and, second, on the ground that the horse was a vicious horse, and was permitted to be at large by the defendant with knowledge of its vicious character.

It is claimed by the defendant that the ordinance was not sufficiently pleaded to entitle it to be admitted in evidence. The complaint alleged generally that at the time of the injury one of the ordinances of the city of La Crosse, duly enacted, prohibited the running at large of horses within the limits of said city, and that said ordinance provided, among other things, that the owner or person in charge of such animal who should permit the same to run at large within the limits of the city contrary to the provisions of the ordinance should be punished by fine. This was, we think, entirely sufficient, as against an objection made upon the trial. The ordinance was pleaded by stating its substance and legal effect. A foreign statute may be pleaded by stating its terms, without referring to its title or the day of its passage. Trust Co. v. Burton, 74 Wis. 329, 43 N. W. 141. No reason exists why a stricter rule should be applied to the pleading of a city ordinance.

The ordinance was introduced in evidence, and section 1 thereof reads as follows: “No horse, sheep, goat, swine, mule, colt, goose or cattle, nor any poultry, turkeys or chickens shall be permitted to run at large in the city at any time, nor be herded or pastured in or upon any street of said city, nor be permitted to graze or feed in any of said streets, except in such parts of said street as are in front of or adjoining lands owned or occupied by the owner or keeper of the animal grazing or feeding thereon, and if found running at large, each and every one of the animals aforesaid may be impounded under the provisions of this ordinance, in any public pound of the city, and any owner or owners of the animals above specified, or any person in whose charge the same may be, who shall permit the same to run at large within the limits of the city of La Crosse contrary to the provisions of this ordinance, shall on conviction thereof before the justice of the peace of the city at large, be punished by a fine not exceeding ten dollars nor less than one dollar.” The plaintiff's claim is that the ordinance was enacted for the purpose, among others, of protecting persons lawfully upon the streets from injury resulting from the viciousness or playfulness of horses or cattle at large, and hence that an infraction of the ordinance is negligence per se, which, if it results in injury to a passenger on the street, constitutes actionable negligence. Smith v. Exchange, 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504. In response to this claim the defendant makes two replies: First, that the horse was feeding in front of plaintiff's own land, and hence there was no violation of the ordinance; and, second, that the ordinance was not enacted for the purpose of protecting persons from injury, and hence that its violation cannot be ground for a claim of negligence upon which an action for personal injury can be found. As to the first of those claims of the defendant, we think it is quite plain that it is not well founded. The ordinance is not happily worded, but its purposes are quite plain. Those purposes are to prevent the running at large of animals in the street, to prevent their being herded or pastured in the street, and to prevent their grazing or feeding in the street. There is no exception to the prohibition against their running at large, but there is an exception to the prohibition against grazing or feeding, which exception consists simply in permitting such grazing or feeding in front of the owner's premises. This exception cannot be reasonably...