Gilmore v. Chicago, Milwaukee & St. Paul Railway Co.

Wisconsin Supreme Court

Gilmore v. Chicago, Milwaukee & St. Paul Railway Co.

62 N.W. 621, 90 Wis. 102, 1895 Wisc. LEXIS 218

DecidedApril 3, 1895

StatusPublished

This text of 62 N.W. 621 (Gilmore v. Chicago, Milwaukee & St. Paul Railway Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gilmore v. Chicago, Milwaukee & St. Paul Railway Co., 62 N.W. 621, 90 Wis. 102, 1895 Wisc. LEXIS 218 (Wis. 1895).

Pincite

Opinion

Cassoday, J.

The plaintiff owns a farm, upon which he resides, near Round Hill, in Pepin county. The Chippewa river runs through it in a northerly and southerly direction. ' The defendant’s railway runs along the easterly hank of the river at that point. The plaintiff’s dwelling house, outbuildings, and pasture were on the westerly side of the river, -and he had a barn opposite and on the easterly side of the railway track. The plaintiff’s pasture, on the westerly side of the river, was fenced on all sides, except the side adjoin;ing the river, where i-t was unfenced. At the time in question there was no fence for a distance of 1,200 feet between the opposite shore of the river and the raffway track, and never had been. The complaint alleges, in effect, that June JU, 1898, the plaintiff’s mare strolled from said pasture across the river and onto the defendant’s right of way at a point where there never had been any fence on the westerly side thereof, and was soon thereafter, and at a point some distance northward, killed by being struck by a passing train or car, and demands judgment for her value. The answer is a general denial. The verdict is in favor of the plaintiff for the value of the mare, and this is an appeal by the defendant from the judgment entered upon the verdict.

The defendant contends that the preponderance of the ...evidence is to the effect that the mare got onto the right of way through a gate from the plaintiff’s barn on the easterly side thereof, by reason of the plaintiff’s negligence. There is evidence, however, tending to prove that the mare got onto the right of way where it was unfenced, as alleged, and we are constrained to hold that such evidence is sufficient to support the verdict. S. & B. Ann. Stats, sec. 1810; Bremmer v. G. B., S. P. & N. R. Co. 61 Wis. 114; Quackenbush v. W. & M. R. Co. 62 Wis. 411. This being so, there was no error in refusing to direct a verdict in favor of the defendant.

By the Court.— The judgment of the circuit court is af-.iirmed.

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Cassoday, J.

The plaintiff owns a farm, upon which he resides, near Round Hill, in Pepin county. The Chippewa river runs through it in a northerly and southerly direction. ' The defendant’s railway runs along the easterly hank of the river at that point. The plaintiff’s dwelling house, outbuildings, and pasture were on the westerly side of the river, -and he had a barn opposite and on the easterly side of the railway track. The plaintiff’s pasture, on the westerly side of the river, was fenced on all sides, except the side adjoin;ing the river, where i-t was unfenced. At the time in question there was no fence for a distance of 1,200 feet between the opposite shore of the river and the raffway track, and never had been. The complaint alleges, in effect, that June JU, 1898, the plaintiff’s mare strolled from said pasture across the river and onto the defendant’s right of way at a point where there never had been any fence on the westerly side thereof, and was soon thereafter, and at a point some distance northward, killed by being struck by a passing train or car, and demands judgment for her value. The answer is a general denial. The verdict is in favor of the plaintiff for the value of the mare, and this is an appeal by the defendant from the judgment entered upon the verdict.

The defendant contends that the preponderance of the ...evidence is to the effect that the mare got onto the right of way through a gate from the plaintiff’s barn on the easterly side thereof, by reason of the plaintiff’s negligence. There is evidence, however, tending to prove that the mare got onto the right of way where it was unfenced, as alleged, and we are constrained to hold that such evidence is sufficient to support the verdict. S. & B. Ann. Stats, sec. 1810; Bremmer v. G. B., S. P. & N. R. Co. 61 Wis. 114; Quackenbush v. W. & M. R. Co. 62 Wis. 411. This being so, there was no error in refusing to direct a verdict in favor of the defendant.

By the Court.— The judgment of the circuit court is af-.iirmed.

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62 N.W. 621, 90 Wis. 102, 1895 Wisc. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-chicago-milwaukee-st-paul-railway-co-wis-1895.

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