Peterson v. Wis. Cent. R. Co.

• Decision Date: 17 October 1893
• Citation: 86 Wis. 206,56 N.W. 639
• Parties: PETERSON v. WISCONSIN CENT. R. CO. ET AL.
• Court: Wisconsin Supreme Court

86 Wis. 206

56 N.W. 639

PETERSON

v.WISCONSIN CENT. R. CO. ET AL.

Supreme Court of Wisconsin.

Oct. 17, 1893.

Appeal from circuit court, Ashland county; J. K. Parish, Judge.

Action by Louis Peterson against the Wisconsin Central Railroad Company and the Northern Pacific Railroad Company, lessee. Plaintiff had judgment and defendants appeal. Reversed.D. S. Wegg and T. H. Gill, for appellants.

Rossman & Foster, for respondent.

ORTON, J.

This action is brought by the plaintiff against the appellant company to recover damages for the killing of his two, or a span of, horses, on the night of June 13, 1892, by a freight train, caused by the negligence of the company in leaving open the fence of its right of way, through which the horses had strayed upon its track. The following facts substantially appear from the evidence: The plaintiff owned and occupied a large yard, situated a mile or a mile and a half south of the city of Ashland, the west side of which was on the line of the railroad. It was fenced on the three sides with a wire fence, and on the west side by the wire fence along the right of way built by the company. In this yard was a slaughterhouse, barn, and dwelling house. The barn was facing towards the railroad, and about 60 or 70 feet from the fence; and in front of the barn the wire fence along the right of way, for four or five rods, was broken down from the posts, and lay on the ground, and this was its condition when the plaintiff bought the premises, about six months before, and had so continued. Through this opening the plaintiff had driven several times, and his foreman had driven cattle through it, and many other people had used it in going to the slaughterhouse. This opening had existed most of the time for several years. It had been many times repaired by the company, but very soon it was torn down again by some persons unknown. The plaintiff and others had used it in driving to the slaughterhouse, and it was often used as one of the entrances to the yard. The foreman of the yard or head butcher had used the team of horses that were killed that afternoon, and turned it over to an employe of the plaintiff, to be put in the barn, with the caution that if he turned them out to feed on the grass he must watch them, and see that they did not go upon the right of way; and the plaintiff had told his men that if they were so turned out they must be watched, for the same purpose. The said employe, however, about 8 o'clock in the evening, when it was quite dark, turned the horses out in front of the barn, and opposite said opening, to graze on the high grass which was growing there, and which extended all along through the opening and in the right of way, and he kept watch of them a few minutes, and then, for a minute or two, his attention was somewhat diverted by fixing the barn door, and when again he looked the horses were gone, and he and the foreman tracked them through the opening, and along the right of way, to the place where they were killed by the freight train of the company that had just passed along. These are the plain and undisputed facts of this case. The jury found that the defendant was guilty of negligence contributory to said injury, and that the...