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

• Decision Date: 22 November 1887
• Citation: 70 Wis. 160,35 N.W. 296
• Court: Wisconsin Supreme Court
• Parties: DINWOODIE v. CHICAGO, M. & ST. P. RY. CO.

70 Wis. 160

35 N.W. 296

DINWOODIE

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

Supreme Court of Wisconsin.

November 22, 1887.

Appeal from circuit court, Portage county.

Cate, Jones & Sanborn, for respondent.

John W. Carey, for appellant.

COLE, C. J.

The errors relied on for a reversal of the judgment are (1) that there is no testimony which shows or tends to show that the ox which was killed got upon the right of way at a point where the defendant company was bound to maintain a fence and did not; (2) that the undisputed testimony shows that the ox was killed upon its depot grounds. The fact is admitted that the animal was killed about 60 rods north of the station building at Hutchinson; that at this point the right of way was fenced on the east side, but not on the west. It appears from the testimony that there was a ditch and an embankment at this point, but not sufficient to prevent cattle from coming on the track from the west. The evidence as to where the ox got upon the track is the testimony of the plaintiff himself, who said, in effect, that he examined the track for the purpose of seeing where the ox came upon it; that cattle tracks came from the west side of the right of way, across the side track, and upon the main track of the railroad. The witness did not see the ox go upon the track, but he said the tracks which he saw were ox tracks, leading straight from the west side across the switch track and onto the main track, where he was killed. The witness saw these cattle tracks leading through the ditch and up the embankment to the railroad track. He saw cattle tracks at no other place on the right of way. Now this evidence is not conclusive as to the point where the ox came onto the railroad track, but it was sufficient to warrant the jury in finding that the animal came upon the defendant's track from the west of that place. Were one to trace cattle tracks plainly made in the dirt or soil for several feet from the west line of the right of way directly across a ditch and embankment onto a railroad track, as the witness said he did, he would naturally conclude that an animal had there passed onto the railroad. Such a conclusion or inference would not rest in mere conjecture, but would be supported by visible signs raising a strong probability of the fact, such as men act on in the affairs of life. It is true that the witness could not swear that these cattle tracks which he saw were made by his ox, because he did not see the ox go there. Still it did not appear that any cattle tracks were seen at any other places on the right of way between the point where the ox was killed and the depot building south. We think, therefore, it was not error to submit to the jury the question, upon all the evidence, whether the plaintiff's ox did come upon the railroad track from the west near where he was killed. The probabilities of the case tend to show that he did. The trial court directed the jury that, to justify a finding for the plaintiff, they must be satisfied affirmatively from the weight...