Mills & Le Clair Lumber Co. v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 04 November 1896
• Citation: 68 N.W. 996,94 Wis. 336
• Court: Wisconsin Supreme Court
• Parties: MILLS & LE CLAIR LUMBER CO. v. CHICAGO, ST. P., M. & O. RY. CO.

94 Wis. 336

68 N.W. 996

MILLS & LE CLAIR LUMBER CO.

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

Supreme Court of Wisconsin.

Nov. 4, 1896.

Appeal from superior court, Douglas county; Charles Smith, Judge.

Action by the Mills & Le Clair Lumber Company, a corporation, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, for injury to animals. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Action for injury to a span of mules by the defendant's train at a station called “South Range.” The negligence claimed is that at the place of the accident the defendant's road was unfenced, and that the train was run at great speed and without warnings of its approach. The defense claimed that the place of the accident was depot grounds, which it was not required to fence, and that the mules had strayed upon the defendant's right of way, and were trespassers there. The place of the accident was left unfenced, for depot grounds. There was here a side track, where cars were switched to be loaded and unloaded, and afterwards to be again made up into trains, and where trains met and passed. There was here, also, a commodious platform, where passengers alighted from and were received upon trains, and where freight was received and forwarded. There was also a water tank. There was no depot building or station agent. Two trains each way stopped at this station each day, and other trains passed without stopping. A space 1,000 feet in length of the track was left unfenced for the purposes of a station. There was a switch and cattle guard at each end of this space. Beyond the switch and cattle guard, the right of way was fenced in each direction. The plaintiff's mules strayed upon the right of way and track at some point in this unfenced space. A train, which passed without stopping or slowing down, struck them, killing one and wounding the other. Questions as to the speed of the train, and as to whether the usualwarnings of its approach were given, were overruled. There was a general verdict for the defendant. The court of its own motion submitted three special questions, one of which the court answered itself, one was answered by the jury, and to the other the jury answered “No evidence.” The questions had only a very limited bearing upon the case. Judgment for the defendant was entered upon the verdict, and the plaintiff appeals.

Murphy & Bundy and Ross, Dwyer & Hanitch, for appellant.

Pope & Perrin, for respondent.

NEWMAN, J. (after stating the facts).

The appellant alleges six errors: (1) The exclusion of evidence showing the speed of the train and the absence of warnings by bell and whistle. (2) In not directing a verdict for plaintiff. (3) In submitting to the jury the question whether the place where the mules entered the right of way was depot grounds. (4) By writing into the special verdict the figures “1,000,” by mistake, instead of “100,” in answer to a question. (5) The jury erred in answering “No evidence” to the question, “How far and in what direction from the place of the accident did the mules enter upon the right of way?” (6) The general verdict is contrary to the law and to the evidence.

No doubt South Range is a station on the defendant's line of road, at which it may lawfully have depot grounds of reasonable extent, which it may permit to remain unfenced. Although its depot accommodations are somewhat limited and meager, it is a place where passengers get on and off trains, where goods are loaded and unloaded, where cars are set out upon side tracks, to be loaded and unloaded, and stored, and again taken up into trains. “Depot grounds” has been defined by this court to be “the place where passengers get on and off trains, and where goods are loaded and unloaded, and all grounds necessary and convenient and actually used for such purpose by the public and the railroad company. This includes the switching and making up of trains, and the use of side tracks for the storing of cars, and the place where the public requires open and free access to the road for the purpose of said business.” Grosse v. Railway Co., 91 Wis. 482, 65 N. W. 185. The extent of the defendant's depot grounds at South Range was limited and defined by the act of the company itself in the location of its switches and cattle guards. Prima facie, no doubt, the depot grounds include all that part of the right of way which is left unfenced between the switches and cattle guards, on either side of the platform,...