Ryan v. Chicago & Northwestern Railway Co.

77 N.W. 894, 101 Wis. 506, 1899 Wisc. LEXIS 119

• Court: Wisconsin Supreme Court
• Decided: January 10, 1899
• Status: Published

Opinion

Winslow, J.

The notice required to be given by ch. 202, Laws of 1893, was a condition precedent to the maintenance of the action. Weed & Gumaer Mfg. Co. v. Whitcomb, ante, p. 226. Such notice must state the “ time and place ” where such damage occurred. Laws of 1893, ch. 202. This means that “ it must point as directly and plainly to the place of the injury as is reasonably practicable, having regard to its character and surroundings.” Weber v. Greenfield, 74 Wis. 234; Sowle v. Tomah, 81 Wis. 349. The fact that some of defendant’s officers or employees may have known where the damage occurred is not material, nor will such knowledge dispense with the necessity of giving the prescribed notice. Sowle v. Tomah, supra. The letters which constitute the notice in the present case fail to state where the horses were run over with any degree of certainty. It is stated that they were killed in town 33, range 11. The railroad runs for a distance of about three miles through town 33, range 11, and a notice which applies equally to any place within a distance of three miles cannot be said to be reasonably certain.

The amendment to ch. 202, supra, which was added in the Statutes of 1898, and appears as the last paragraph of sec. 18165 of the Statutes of 1898, does not apply to this case, because it was passed after the rights in this action became fixed, and it is unnecessary to construe it.

By the Court.-— Judgment affirmed.