76 Wis. 43 | Wis. | 1890
The horses of the plaintiff came on the track of the Wisconsin Central Railroad, at the village plat of Peeksville, between Glidden station on the north and Butternut station on the south, and were killed by a passing train. The only litigated question in the case was whether the place where they were killed was “ depot grounds,” so that it need not be fenced. The court directed a verdict for the plaintiff, holding that such place was not depot grounds, and that it ought to have been fenced. We think the court was warranted by the evidence in so holding and could not have reasonably held otherwise.
The plat was laid out, and the fences removed from a space along the railroad of about 400 feet, and cattle-guards placed at each end, only about a month before the accident. The road along there runs about north and south. There is a highway parallel with the track on the west side, and another highway crossing the track east and west, and a rather blind wagon road or path from the first-mentioned highway, across the track, and running northeasterly to a country store, at some distance from the road. The horses came from the west, and were killed on this wagon road. There were only two other houses on the plat, besides the store. The evidence does not show that anything was done by the company, besides removing the fences, to make this point depot grounds, after the plat was laid out, or that there had been any new conditions of business or travel since that time. When the fences were there, there were gate
But I will not copy the testimony further, as it would be mere repetition. The testimony sustains the above facts. There is not the slightest evidence that this village plat was depot grounds -when the horses were killed, and there were none of the concomitants of a railway station, except the platform and side track, and they were there long before the ground was platted or the fences removed. There has been nothing done by the company to make it a depot, since the ground was laid out into lots, except to remove the fences and put in the cattle-guards. There is no ground or excuse for even a pretense that this was a depot. It is difficult, if not impossible, to find an analogous case in the books. The recent case, in this court, of Jaeger v. C., M. & St. P. R. Co. 75 Wis. 130, is nearer so than any I have seen. There, however, the side track was used to ship large quantities of tan bark. The case of Dinwoodie v. C., M. & St. P. R. Co. 70 Wis. 160, is a very much stronger case, and McDonough v. M. & N. R. Co. 73 Wis. 223, is much
The company cannot, of course, claim that there was a depot there while it remained fenced, and nothing was "done afterwards to make it so. This place had been used for a long .time in the same way, and the company had not seen fit to put up any depot building, keep an agent, sell tickets, and bill freight, or manifest any intention to increase the facilities of their own business, or that of others, in the near future, or assumed any of the obligations of having a depot at that place. It might occur, possibly, that a depot had just been opened in a new village that had the prospect of immediate growth. The people had begun to build dwelling and business houses, and to establish themselves in business, and others were locating there, 'and it had prospects of growth. A depot is needed at once. The fences along the railroad through it would be a great inconvenience, and retard its growth. The}»- must be removed. The company must have time in which to establish all the facilities of a depot. The village is in embryo, and so is its depot. In such a case, if the company manifested an intention to go on as fast as practicable, and complete the facilities of a depot appropriate to the place, it might be that they would be justified in removing the fences, among their other beginnings and preparations. But this is a great way from such a case. The circuit court did not err in directing a verdict for the plaintiff.
By the Oourt.— The judgment of the circuit court is affirmed.