May v. Chicago & Northwestern Railway Co.

79 N.W. 31, 102 Wis. 673, 1899 Wisc. LEXIS 104

• Court: Wisconsin Supreme Court
• Decided: April 25, 1899
• Status: Published

Opinion

Winslow, J.

The respondent relies upon two propositions as justifying the nonsuit: (1) That the notice of the injury was insufficient, because indefinite as to the place where the accident occurred; and (2) that it was part of the plaintiff’s duty to close the gate when he saw it open, and hence that the accident was caused by his own neglect of duty.

The court held the notice sufficient, but nonsuited the plaintiff upon the second ground.

We think the court was entirely right in holding the notice sufficient. Fairly and reasonably construed, the notice states that the cattle came upon the track through a gate in the right of way fence where such right of way runs through the farm of John Walterscheit, in the town of Blooming Grove, in Dane county, and were killed on said right of way, i. e. the right of way through Walterscheit’s farm, by reason of the negligence of the company in failing to keep the gate closed and in carelessly running its engine and train. Certainly, this seems reasonably definite and certain. If the company did not know where the farm of John Walterscheit was, it was easily ascertainable. The claim that the place of the injury is not definitely stated is entirely too narrow a construction of language for practical purposes.

On the other hand, we think that the court could not say, as matter of law, that it was the duty of tbe plaintiff to close the gate. There was no evidence tending to show that it was part of a mere section man’s duty to close or repair gates or fences, without direction so to do from the foreman of the crew. In fact, all the evidence there was in the case upon the subject was to the contrary. The defendant may, perhaps, be able to show that the plaintiff’s duty, in fact, went to this extent, but the evidence does not now show it.

No other considerations are urged in support of the 'non-suit.

By the Court.— Judgment reversed, and action remanded for a new trial.