Richardson v. Chi. & N. W. Ry. Co.

• Decision Date: 12 December 1882
• Parties: RICHARDSON v. CHICAGO & N. W. RY. CO.
• Court: Wisconsin Supreme Court

56 Wis. 347

14 N.W. 176

RICHARDSON

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Filed December 12, 1882.

Appeal from circuit court, Rock county.

The railway of the defendant runs through the plaintiff's farm. In October, 1878, a mule and some horses of the plaintiff escaped from his pasture adjoining the railway track through a defective gate in the railway fence and went upon the track, where they were run over by a passing locomotive and train. The mule was killed and some of the horses were injured. This action is to recover damages therefor. It is not disputed that the gate was out of repair. The defense is that the plaintiff was guilty of negligence which contributed directly to the injury complained of. The testimony is stated in the opinion. Verdict and judgment for plaintiff. Motion for a nonsuit and for a new trial were made on behalf of defendant at the proper times, and were denied by the court. The defendant appeals from the judgment.Bennett & Sale, for respondent, William E. Richardson.

F. J. Lamb, for appellant, Chicago & Northwestern Railway Company.

LYON, J.

The undisputed evidence is that the gate through which the plaintiff's mule and horses escaped from his pasture, when the injury complained of occurred, had been out of repair for several weeks, and that the defendant's section foreman, whose duty it was to repair it, had timely and repeated notice thereof. That the defendant is chargeable with negligence in not repairing the gate is beyond question. After the gate, had become defective, one of the mules of the plaintiff went through it, and later his horses escaped from the pasture through the same gate. Thereupon, and four or five weeks before the injuries complained of were inflicted, the plaintiff fastened the gate with a chain so that his stock could not open it. The gate was kept constantly fastened with this chain until the day of the injury. On that day the two sons of the plaintiff, aged respectively 19 and 17 years, who lived with and worked for their father, drove the plaintiff's stock including the animals injured, from another field, through such gate, into the pasture. The eldest son shut the gate after the stock passed through it, but neither of them testified, nor does any other witness, that they again fastened the gate with the chain. The eldest son said that he fastened the gate, but his whole testimony shows clearly that he only used the defective fastenings appurtenant to the gate,...