Habenicht v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 08 January 1908
• Citation: 114 N.W. 497,134 Wis. 268
• Parties: HABENICHT v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

134 Wis. 268

114 N.W. 497

HABENICHT

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

Supreme Court of Wisconsin.

Jan. 8, 1908.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by John W. Habenicht against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought to recover for the value of a horse alleged to have been killed by going upon defendant's road where the same runs through the northwest quarter of section 20, town 47, range 12, in Douglas county, Wis., on account of failure to fence as required by section 1810, St. 1898. The defense was that the place where the horse entered was depot grounds, and therefore defendant was not required to fence under the provisions of the statute. The jury returned the following verdict: “(1) Was the place where the plaintiff's horse entered upon the defendant's property within the limits of defendant's depot grounds at Hines? A. It was not. (2) Was plaintiff guilty of any want of ordinary care that contributed to produce the injury to his horse? A. He was not. (3) If the court is of the opinion that the plaintiff is entitled to recover, then in what amount do you assess his damage? A. $125.” Motions for judgment notwithstanding the verdict, to correct the verdict, and for a new trial, were denied, and judgment rendered for the plaintiff upon the verdict, from which this appeal was taken.S. L. Perrin, for appellant.

James R. Hile and H. W. Deitrich, for respondent.

KERWIN, J. (after stating the facts as above).

The main contention here is that the evidence is not sufficient to support the finding of the jury on the first question of the special verdict to the effect that the place where the plaintiff's horse entered upon the defendant's property was not within the limits of the defendant's depot grounds. The case was here on former appeal, Habenicht v. Chicago, St. P., M. & O. R. Co., 126 Wis. 521, 105 N. W. 910, where this court held that the question of whether the place where plaintiff's horse entered upon the track was depot grounds was a question for the jury. The evidence upon the second trial, now before us, being substantially the same as that upon the former trial, under the repeated decisions of this court, the determination upon the former appeal must be regarded binding here. Zimmer v. Fox R. V. E. R. Co., 123 Wis. 643, 101 N. W. 1099;Klatt v. Foster L. Co., 97 Wis. 641, 73 N. W....