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

• Decision Date: 26 November 1895
• Citation: 65 N.W. 185,91 Wis. 482
• Court: Wisconsin Supreme Court
• Parties: GROSSE v. CHICAGO & N. W. RY. CO.

91 Wis. 482

65 N.W. 185

GROSSE

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

Supreme Court of Wisconsin.

Nov. 26, 1895.

Appeal from circuit court, Oconto county; Samuel D. Hastings, Jr., Judge.

Action by Frank Grosse against the Chicago & Northwestern Railway Company for damages for cattle killed by one of defendant's trains. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

The action is for damages for the killing of two colts by the appellant's train near Little Suamico. At that place the appellant maintains a regular station, consisting of a depot building for freight and passengers, a water tank, cattle pens, and sidetracks. One side track terminates at a switch which is about 1,400 feet north from the depot building. A short distance north of the switch is a cattle guard, and from that point northward the right of way is fenced. South from these cattle guards the right of way is unfenced for the distance of half a mile. This whole unfenced portion of its right of way the appellant claims to be comprised within its depot grounds. A short distance to the south of this switch two highways intersect the track. At this point of intersection it is the custom to load and unload freight. At a point north of this intersection, but between it and the switch, the plaintiff's colts came upon the right of way, went north upon the track, to the cattle guard, and stood there until they were killed by a passing train. The question litigated was whether the place where the colts came upon the right of way was within the appellant's depot grounds. The question was submitted to the jury, who answered it in the negative. There was judgment for the plaintiff, from which this appeal is taken. The errors assigned are (1) the submission of this question to the jury; and (2) a refusal to set aside the answer, as unsupported by the evidence. The question presented by the appeal is, practically, whether there is evidence sufficient to take this question to the jury, or whether the court should have decided it in favor of the appellant.Winkler, Flanders, Smith, Bottum & Vilas, and W. K. Gibson, for appellant.

O. F. Trudell and A. W. Anderson, for respondent.

NEWMAN, J. (after stating the facts).

Ordinarily, no doubt, the question whether the locus in quo is depot grounds is for the jury. Fowler v. Trust Co., 21 Wis. 78;Dinwoodie v. Railroad Co., 70 Wis. 160, 35 N. W. 296;McDonough v. Railroad Co., 73 Wis. 223, 40 N. W. 806. But, doubtless, there may be cases so clear upon the evidence and situation as to admit of but one conclusion, so that there is no disputed question for the jury to pass upon. In such cases the court should decide the matter, and not submit it to the jury. The appellant contends that this is such a case...