Truax v. Chi., St. P., M. & O. Ry. Co.
| Decision Date | 06 December 1892 |
| Citation | 53 N.W. 842,83 Wis. 547 |
| Parties | TRUAX v. CHICAGO, ST. P., M. & O. RY. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Eau Claire county; E. B. BUNDY, Judge.
Action by Peter Truax against the Chicago, St. Paul, Minneapolis & Omaha Railway Company to recover the value of a horse alleged to have been killed by the negligence of defendant. From a judgment for plaintiff, defendant appeals. Reversed.
The other facts fully appear in the following statement by WINSLOW, J.:
The action is to recover the value of a horse claimed to have been killed by the negligence of defendant. There is but little dispute as to the facts. Defendant's railroad crossed plaintiff's farm, separating a part of the pasture land from the buildings. At one place there was a swale or depression, which the railroad crossed at right angles, where considerable water ran in the spring of the year. When the railroad was originally constructed, in 1871, a small culvert for the passage of water was constructed across this swale. Afterwards, and about the year 1880, a pile bridge was put in, which was of sufficient width and height so that stock could pass under it, and plaintiff then began to use it for passage of stock from the pasture to his barns. In 1887 this bridge was reconstructed, and a fine bridge was put in, one of the spans of which nearly coincided with the former pile bridge, and after this rebuilding plaintiff used the opening under this span for passage of stock and teams, without objection on the part of the company. The opening thus used was about 6 feet in height in the clear and 13 feet wide. Several bolts were left projecting downward some three inches from the under surface of the timbers into the opening, and in the summer of 1890, while some of plaintiff's horses were being driven through the opening, one of his horses suddenly threw up its head and struck one of the ends of the bolts so projecting, and was killed. Neither of the bridges was built by request of or arrangement with the plaintiff. A farm crossing or grade for the plaintiff's use had been constructed by the company about 80 rods distant from the bridge. Upon the trial the plaintiff recovered on the ground that the defendant had been negligent in allowing the bolts to remain projecting into the passageway, and defendant appeals.Thomas Wilson, S. L. Perrin, and R. J. MacBride, for appellant.
Hayden & Start and T. F. Frawley, for respondent.
WINSLOW, J., ( after stating the...
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