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

• Decision Date: 15 December 1896
• Citation: 94 Wis. 571,69 N.W. 372
• Court: Wisconsin Supreme Court
• Parties: LOESER v. CHICAGO, M. & ST. P. RY. CO.

94 Wis. 571

69 N.W. 372

LOESER

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

Supreme Court of Wisconsin.

Dec. 15, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Ferdinand Loeser against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for defendant. Plaintiff appeals. Reversed.

Action for the value of a horse. The plaintiff delivered to the defendant 17 horses, to be carried from Darlington, Wis., to Chicago, Ill. They were to be unloaded, fed, and watered, en route, at the defendant's yards in Milwaukee. They arrived at Milwaukee in the nighttime. They were taken from the car, and driven in a body, through a lane, into a pen, where the defendant's employýes at once commenced tying them. Before all were tied, two of them began to kick. One of these dislocated his leg at the hock, as the jury found, by his own act of kicking, and it became necessary to kill him. The contract on which the horses were carried contained these provisions: “The company shall not be liable for the acts of the animals themselves, or to each other, such as biting, kicking, goring, and smothering, * * * or from loading or unloading them,” and “any loss or damage for which it may be responsible shall not exceed the following agreed valuation: If horses or mules, $100 each.” There was a special verdict as follows: “(1) Did the horse in question suffer an injury which made it necessary to kill it by reason of the negligence of the servants of the defendant corporation? Answer. Yes. (2) What was the value of the horse, immediately before it was injured? Answer. Two hundred and fifty ($250) dollars. (3) Did the defendant's conductor say to the plaintiff, before the train reached Milton, that his train was late, and that he was afraid the train for Milwaukee would not wait for his train? Answer. Yes. (4) Was the horse injured by or through the kicking of the horse, or the kicking of another horse? Answer. By the kick of the horse itself. (5) If you answer the third question ‘Yes,’ did the plaintiff act as a man of ordinarycare and prudence would have acted, in omitting to ascertain whether the horse would or would not leave Milton Junction without delay? Answer. Yes. (6) Was the plaintiff guilty of any negligence which caused him to be left, or in being left, at Milton, on the night of July 2, 1892, so that he did not get to Milwaukee with the car load of horses? Answer. No. (7) Do you find for the plaintiff or for the defendant? Answer. For the plaintiff.” On this verdict the court rendered judgment for the defendant. The plaintiff appeals.

Granger & Son, for appellant.

C. H. Van Alstine, for respondent.

NEWMAN, J. (after stating the facts).

It was a question for the jury whether it was negligence to drive the horses loose into the pen, instead of leading them separately, so as to have them at all times under safe control. The question seems to have been...