Grosse v. Chicago & Northwestern Railway Co.

91 Wis. 482 | Wis. | 1895

Eewmah, J.

Ordinarily, no doubt, the question whether the locus in quo is depot grounds is fr the jury. Fowler v. Farmers' L. & T. Co. 21 Wis. 78; Dinwoodie v. C., M. & St. P. R. Co. 10 Wis. 160; McDonough v. M. & N. R. Co. 73 Wis. 223. But, doubtless, there may be cases so clear upon the evidence and situation as to admit of but one conclusion, so that there is no disputed question for the jury to pass upon. In such cases the court should decide the matter and not submit it to the jury. The appellant contends that this is such a case. But the court has taken a different view of it.

“Depot grounds” have been defined by this court to be “ the place where passengers get on and off trains, and where goods are loaded and unloaded, and all grounds necessary and convenient and actually used for such purpose by the public and by the railroad company.” . This includes the switching and making up of trains, and the use of sidetracks for the 'storing of cars, and the place where ’the public require open and free access to the road for the purposes of such business. Cases cited above; Plunkett v. M., S. S. M. & A. R. Co. 79 Wis. 222. Such grounds may be left unfenced.

It will be observed that three conditions must concur to constitute the particular grounds depot grounds, within the-contemplation of the law. They must be necessary, convenient, and actually used for the purposes of depot grounds. They must be necessary. This, no doubt, is to be interpreted as meaning reasonably necessary. It is not enough that they are convenient and actually used; they must be reasonably necessary as well. No doubt the question of what, or how much, ground at any particular station will be necessary for the convenience of business at that station must, in the first instance, be determined by the company itself. But that determination cannot, considering the nature of the interests involved, in all cases be conclusive. Grounds not reasonably necessary for depot grounds are required to be fenced, both for the safety of the traveling public and the owners of animals which may otherwise stray upon the tracks and be injured. So it seems that cases may arise in which it may properly be a question for the jury whether the place where the animals were injured was within the limits of grounds which were reasonably necessary for depot uses, although they were actually used by the company for that purpose. In the instant case the portion of appellant’s right of way which was left unfenced for depot purposes was one half mile in length. ■ For that distance its tracks were exposed to the incursions of wandering animals, thus increasing the hazard to passengers upon its trains, and exposing the animals themselves to the perils of passing trains, and their owners to loss. The fact that the company left all this portion of its tracks unfenced is not conclusive that it was all necessary for depot grounds. It was properly a question for the jury.

By the Oourt.— The judgment of the circuit court is affirmed.'