Carey v. Chicago, Milwaukee & St. Paul Railway Co. , 61 Wis. 71 ( 1884 )

LyoN, J.

A reversal of the judgment in this case is inevitable on either of two grounds.

1. The jury found specially that the plaintiff had knowledge of the storm which blew down the fences, but did not thereafter endeavor to ascertain whether the railroad fence was blown down along the uninclosed lands upon which he turned his cattle; also that he had no reason to believe or suspect, before he turned them out, that such railroad fence had been blown down, and that in so turning them out he was not guilty of negligence.

The undisputed evidence is that the plaintiff knew, when he turned out his cattle, that the storm had prostrated fences. This, we think, was sufficient to put him. upon inquiry as to whether the railroad fences abutting such un-inclosed lands and across which the storm swept were uninjured, or whether they had been blown down. Knowing the severity of the storm, and knowing that it had prostrated fences, it cannot truthfully be said that the plaintiff had no reason to believe or suspect that such railroad fences had been prostrated. The finding in that behalf is therefore entirely unsupported by the evidence, and cannot be upheld. It should have been that the plaintiff had reason to believe or suspect that such fences had been blown down. With a proper finding in this particular it is difficult to perceive how the jury could find the plaintiff not guilty of negligence which contributed to the loss of his cattle. Had he known that the fences were down when he turned them out he would have been chargeable with contributory negligence, which would defeat a recovery for his loss. Lawrence v. M., L. S. & W. R'y Co. 42 Wis. 322.

It has already been said that the plaintiff knew enough of the effects of the storm to put him upon inquiry as to its effect upon the railroad fences. He made no such inquiry, but turned out his cattle where, if the fences were down, they would be very liable to go upon the railroad track, and left them to their fate. The case does not differ in principle from that of Lawrence v. R’y Co. supra, and the finding that the negligence of the plaintiff did not contribute to the loss of his cattle is negatived by the undisputed evidence.

The negligence of the plaintiff appeared by his own testimony. Hence the motion oh behalf of the defendant, made when the plaintiff closed his proofs, that a nonsuit be ordered, should have been granted.

2. The only negligence imputed to the defendant company is that it failed to repair its fences within a reasonable time after they were blown down — or rather that a reasonable time for it to do so had elapsed before the cattle were injured. The jury found the defendant guilty of negligence in this respect. This finding is based mainly, if not entirely, upon two other special findings to the effect that there was sufficient material at hand with which the section foreman and his men might have repaired the fence; and that, excluding Sunday, there was sufficient time in which to make the repairs before the plaintiff’s cattle were killed, had reasonable diligence in that behalf been exercised. The jury ‘also found that the material thus at hand consisted of “ lumber from fences blown down, and the tree that fell across the fence, and railroad ties.”

The evidence shows that the tree mentioned in the verdict belonged to one Bowles, who owned the land on which it stood before it was blown down, and that the defendant had a quantity of old ties on its right of way in that vicinity, but no other material which could be used in repairing the fences.

The finding of the jury that the defendant was negligent because it did not repair fences by Monday evening, is manifestly based upon the assumption that the defendant might lawfully have used material therefor standing or being upon lands contiguous to its right of way, and belonging to other parties. The plaintiff testified as follows: “I know it would not have taken mdre than two hours to have fixed it with brush and poles, because I know my cattle would not have gone over brush two feet high. It is a timber country, and plenty of poles and other fencing material right close by; nothing on the right of way except the old ties.”

The case was not argued to the jury, but was submitted on the charge of the court. The charge contained nothing on the subject of the right of defendant to get timber or poles on land which it did not own.- At the close of the charge counsel for defendant called the attention of the court to the subject, and substantially asked an instruction to the effect that defendant had not that right. This is undoubtedly a correct legal proposition. Stephenson v. Grand Trunk R’y Co. 34 Mich. 323. The court declined so to instruct, not because the instruction asked was not good law, but because it was not proposed in time. The learned judge said: “ I am not going to give any additional instructions. It is a rule which has been publicly announced a good many times, that I don’t feel bound to consider instructions that are asked for after the argument has been commenced.”

We think there may be circumstances in some cases which would render that rule a little too rigid. The course of argument by the opposing counsel, or the unexpected failure of the court to charge in a particular way, or to charge at all upon some branch of the case, might make it absolutely necessary for the safety of his client that counsel ask additional instructions, either-at the close of the argument or of the charge, upon points which, earlier in the-case, might not have.seemed important, or which the court may have omitted to notice. The rule should be sufficiently elastic to allow additional instructions to be asked for in such cases after argument and charge. This seems to be in the interest of justice and can work harm to no one. Under the circumstances of this case we think the rule should not have been enforced — especially as the cause was not argued ■— and that the proposed instruction should have been given. Had it been given, the jury might have found that the defendant was not guilty of negligence because of its failure to repair the fences earlier. Certainly the instruction, had it been given, would have had an important influence in the determination of that question, even if it should be held that the section foreman ought to have repaired the fences temporarily with the old ties. It does not appear that there were sufficient of these to repair all of the breaches in the fences. We are constrained to think that the refusal to give the instruction was error.

Before leaving the case it is proper to say of it, generally, that the law only charged the defendant company with the duty to repair its fences with ordinary diligence. Nothing appears in this case to show that its duty to repair one portion of it was any greater or different than was its duty to repair other portions. Neither does the testimony show any special exigency which rendered it the duty of the company to make temporary repairs of any part of the fence with the old railroad ties lying upon its right of way. It was entirely reasonable and proper for the company to keep its depot of materials at Tomah, and for its section foreman to wait until he received such materials from that place before he closed the gaps in the fences; that the foreman made his requisition for materials upon the proper officer or agent of the company, to wit, the road-master at Tomah, in due time; and that he repaired the fences within a reasonable time after the materials therefor reached Centralia is not denied. The only ground, we think, for imputing negligence to the company is the alleged failure of the road-master to ship such material from Tomah as soon as he ought. Nothing appears in the case — no special exigency was shown — which made it the duty of the road-master to ship the materials by any other than a regular freight train, or to employ men outside the usual hours of labor to load the same on the cars. If he made the shipment from Tomah on the first regular freight train going to Centraba, after he had time during the usual hours .of labor on Monday to load the materials on the cars, he exercised reasonable diligence. Whether he did so or not, is not made clear either by the proofs or the special verdict.

By the Gourt.— The judgment is reversed, and the cause will be remanded for a new' trial.