Galpin v. Chicago & North-Western Railway Co. , 19 Wis. 604 ( 1865 )

By the Court,

DixoN, O. J.

It is not' denied that the cow was injured by one of the trains of the company, but there is no evidence of the circumstances or manner in which she was injured, except that she was in the public highway at the place where it is crossed by the railroad, and that the collision occurred there. She may have been on tlae track, so that the engineer, by the exercise of ordinary care and watchfulness, might have seen her and avoided the-collision ; or she may have been off, and out of sight, and, as the train approached, in her fright and insensibility to danger, have gone suddenly before the train, under circumstance which no care or vigilance could have prevented proving fatal. The action is for negligently running upon and injuring her, and it is contended that negligence cannot be inferred from the mere fact of the injury, but that the plaintiff, to entitle himself to recover, must give some special proof of negligence, or lay before tbe jury other facts tending to establish it. As a general proposition applicable to actions for injuries committed by immediate force, I think this is untrue. In such cases it is enough, in general, to prove the act of the defendant and the resulting injury, and if he has any excuse or justification he must show it. If in an action for driving against and killing his horse, the plaintiff prove the killing by the defendant as alleged, without any further evidence of the circumstances or manner of the killing’, that would be sufficient for the recovery of damages; and if the defendant claims that the killing was wholly accidental or unavoidable, or that it was the fault of the plaintiff, the burden is upon him to discharge himself of liability. Proof of the act, and of the injury resulting from it, is prima fade evidence that the act was done wilfully or negligently. Danner v. S. C. Railroad Co., 4 Rich., 334, and cases cited.

But here the cow was in the highway, and must be taken to have been unlawfully there, for cattle are not free commoners by the common law nor by the law of this state; and the question is, how far this circumstance rebuts or modifies the inference of negligence arising from the fact of injury. How the cow happened to be in the highway does not appear. If the plaintiff permitted her to go at large at or near the crossing, it was an act of gross negligence, which would preclude a recovery for anything but wilful injury. Railway Co. v. Goss, 17 Wis., 428. If she escaped from his enclosure, or got into the highway without any fault or want of proper care on his part, a different rule might prevail. If she was being driven along the highway, which, in strictness, is the only condition in which she could have been rightfully there, without an order or by-law of the town permitting her to go at large, then still greater care might be required of the railroad company and its agents. As it is, without any proof of the circumstances under which the cow came in the highway, or of an order or by-law permitting cattle to go at large, it must be assumed, I tHnk, that tRe plaintiff unlawfully allowed Rer to go tRere, and if Re did, it is sucR evidence of negligence on Ris part as, in my judgment, counterbalances the presumption of negligence arising from tRe fact of tRe injury, and tRrows upon Rim tRe burden of giving some further proof of negligence on tRe part of tRe defendant. It appears, tRen, from tRe plaintiff’s own evidence, tRat Re was guilty of negligence wRicR contributed to the injury ; and if Re relies upon the negligence of the defendant as being either greater in degree, or the proximate cause of the injury, Re must give direct proof of the facts.

It follows from these views that the first instruction asked by the defendant was improperly refused. TRe second and fifth instructions, which were also refused, I am not prepared to say were quite correct. TRe different degrees of negligence, and whether proximate or remote, are ignored. I am not prepared to say, in every case of cattle unlawfully upon the highway, that the company shall not be held responsible for any degree of negligence. If the negligence of the owner be slight and remote, and that of the company gross and the immediate cause of the injury, I think that the owner may recover.

It follows also, that the court erred in its general charge. The jury were instructed that if they found that the cow was killed at the crossing, the action would lie for the injury, if at the time it was committed it might Rave been avoided by the exercise of reasonable care and prudence. This was holding the company responsible for ordinary negligence. If, as I Rave assumed, the plaintiff permitted the cow to go at large without authority of law, the company would at most only be answerable for gross negligence, or want of slight care and prudence, or for a wilful injury. The jury should Rave been so instructed.

Judgment reversed, and a new trial awarded.