Quackenbush v. Wis. & M.R. Co.
| Decision Date | 03 March 1885 |
| Citation | 22 N.W. 519,62 Wis. 411 |
| Court | Wisconsin Supreme Court |
| Parties | QUACKENBUSH, ADM'X, ETC., v. WISCONSIN & M. R. CO. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Chippewa county.
Bartlett & Hayden, for respondent.
Edwin H. Abbot and Howard Morris, for appellant.
It is alleged in the complaint that the plaintiff's intestate, while engaged as a conductor in running a train upon the defendant's road in the exercise of ordinary care, was killed by the train being thrown off the track, and the cars wrecked, in consequence of the train running over a steer or heifer which had strayed upon the track. It is alleged that the railroad track at the place where the animal got upon the same, and where it was run over by the train, or where the accident occurred, was wholly unfenced, and had never been fenced, though it was outside of depot grounds, and was not at a farm or highway crossing. Also that there was no pond, water-course, ditch, embankment, or other sufficient protection, rendering a fence unnecessary at that place to prevent cattle from straying upon the right of way of the defendant. It appears that the railroad had been built and operated over this track for more than three months, while that portion of the road had remained wholly unfenced, and exposed to the inroads of cattle upon the same. It is alleged that the accident was caused by the negligence of the defendant in failing to fence its road, thereby permitting cattle to come upon and be run over on its track. There are other acts of negligence stated, but the failure to fence was the principal ground of liability relied on upon the argument.
Our statute makes it the duty of every railroad corporation operating a railroad to erect and maintain on both sides of any portion of its road (depot grounds excepted) sufficient fences as prescribed; also cattle-guards at crossings, in order to prevent cattle or other domestic animals from going on such road. The fences are required to be built within three months from the time of commencing to operate the road, so far as it is operated. It is further enacted that “until such fences and cattle-guards shall be duly made, every railroad corporation owning or operating any such road shall be liable for all damages done to cattle, horses, or other domestic animals or persons thereon, occasioned in any manner, in whole or in part, by the want of such fences or cattle-guards; but after such fences and cattle-guards shall have been in good faith constructed, such liabilities shall not extend to damages occasioned in part by contributory negligence, nor to defects existing without negligence on the part of the corporation or its agents.” Chapter 193, Laws 1881, (section 1810, Rev. St.) Now, it will be at once seen that this provision not only makes it the duty of the company to build its fences within a prescribed time after commencing operating the road, but it also imposes an absolute liability for its failure to do so when damages to cattle and other domestic animals, or to persons on the road, are occasioned in any manner, in whole or in part, by the want of such fences or cattle-guards. The language is clear, positive, and unqualified, and the facts stated in the complaint present a case fully within the spirit and letter of the enactment. The only room for a possible doubt as to the meaning of the provision is whether the word “person,” as there used, was intended to include and does embrace the employes of the company. We perceive no good ground for making them an exception to the absolute liability which the statute imposes upon the corporation.
The validity of this statute is challenged in an elaborate argument by defendant's counsel, because it...
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Willette v. Rhinelander Paper Co.
...abrogate the defense of contributory negligence in actions for damages for failure to fence a railway right of way (Quackenbush v. Railway Co., 62 Wis. 411, 22 N. W. 519), it being appreciated that unmistakable language was necessary to effect that result. In Dugan v. Railway Co., 85 Wis. 6......
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Kiley v. Chi., M. & St. P. Ry. Co.
...that we cannot say that such authority has been arbitrarily and unreasonably exercised in the act before us. In Quackenbush v. Railway Co., 62 Wis. 411, 29 N. W. 519, in passing upon the validity of a statute which excluded the defense of contributory negligence to an action for damages occ......
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Ives v. South Buffalo Ry. Co.
...of way, under which the liability is imposed for failure to obey the command of the statutes. Quackenbush v. Wis. Ry. Co., 62 Wis . 411, 22 N. W. 519;Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463;Minneapolis & St. L. Ry. Co. v. Beckwith, 129 U. S. 26, 9 Sup. C......
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Jacoby v. Chi., M. & St. P. Ry. Co.
...present one within the scope or purpose of the statute. This court, however, has directly held in the two cases of Quackenbush v. Wis. & M. R. Co., 62 Wis. 411, 22 N. W. 519, and 71 Wis. 472, 37 N. W. 834, that the statute is for the benefit of the employé of a railroad while thereon as wel......