Bremmer v. Green Bay, Stevens Point & Northern Railroad , 61 Wis. 114 ( 1884 )

Oassoday, J.

We are precluded from considering the only objectionable portion of the charge by the failure to file exceptions or move for a new trial. After a careful examination of the evidence, however, we are inclined to hold that the plaintiff failed in one particular to establish his case, and hence that the nonsuit should have been granted. There was nothing to prevent the cow going from the plaintiff’s barn onto the depot grounds, and from thence, along the defendant’s railroad track, to the place on the defendant’s right of way where she was seen just before she was killed. She seems to have been lying down at the time with a number of other cattle. As the train approached from the north she was seen to jump up from behind a brush-heap and run onto the track, a few feet ahead of the engine. How she came to be on the right of way at that place does not appear. Whether she came from the open common on either side of the track, or came along up the defendant’s right of way from the depot grounds, is left by the evidence to mere conjecture.

Of course, the defendant was under obligation to build any necessary cattle-guards and to fence its right of way at the point where the cow was killed, within three months from the time it commenced to operate its road at that point, and wás liable, in a proper case, for all damages done to cattle occasioned in whole or in part by the want of such fences or cattle-guards. Sec. 1810, R. S.; ch. 107, Laws of 1880; ch. 193, Laws of 1881; Curry v. C. & N. W. R'y Co. 43 Wis. 665. Rut the damage must be occasioned in whole or in part by the want of such fences or cattle-guards. If the cow came from the depot grounds, which the defendant was not obliged to fence, along the defendant’s right of way, to the place where she was killed, then it would not necessarily be occasioned in whole or in part by the want of such fences or cattle-guards. The burden was on the plaintiff to prove that she did not get onto the track at the point of the killing in that way. This was held by this court in Bennett v. C. & N. W. R'y Co. 19 Wis. 145. To recover, it was incumbent upon the plaintiff to “ show that the animal got upon the track at a point where the company was bound to maintain a fence, but had neglected to do so.” Ibid.

There seems to be no evidence in the case sufficient to have warranted the jury in finding that the cow was intentionally or wantonly killed. The undisputed evidence clearly shows that the speed of the train was very much slackened as it approached the cattle, and that the engine was reversed when the cow started to cross the track. These things show some degree of care, and the absence of any recklessness or purpose to kill.

The remarks of the plaintiff’s counsel, to which exceptions have been taken, were very objectionable, as well after he had been reprimanded by the court as before, and we are inclined to think we should reverse the cause on that ground, if there was no other error. As it is, it becomes unnecessary to consider that question, except to suggest the impropriety of its repetition. Elliott v. Espenhain, 59 Wis. 217.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.