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

• Decision Date: 12 January 1892
• Citation: 81 Wis. 41,50 N.W. 1096
• Court: Wisconsin Supreme Court
• Parties: OLSON v. CHICAGO, M. & ST. P. RY. CO.

81 Wis. 41

50 N.W. 1096

OLSON

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

Supreme Court of Wisconsin.

Jan. 12, 1892.

On rehearing.

WINSLOW, J.

Careful consideration of the very able briefs presented us upon the motion for rehearing has strengthened our belief in the correctness of the decision. One expression in the opinion, however, is possibly subject to criticism. We refer to that part of the opinion where it is said that the plaintiff's act in leaving his team unhitched near the railroad track was a negligent act. In this case it appeared from the plaintiff's own evidence that the team was young, and high-lifed, and afraid of the cars, and that he left them unattended and unhitched with 19 feet of a railway track. Under these circumstances we are satisfied that the plaintiff's act was negligence as matter of law. But, while persuaded that our remarks were strictly correct as applied to this case, we perceive the possibility of their being construed to mean that it is negligence in every case for a man to leave a team of horses unhitched and unattended. We do not so decide. In most cases it must depend on the attendant facts, and be decided by the jury under proper instructions. There may be cases, however, where such an act must be held to be negligence by the court; and we regard this as such a case. With this explanation, the motion for a rehearing will be overruled. It is so ordered.