79 Wis. 222 | Wis. | 1891
The railway of the defendant company runs in an eastern and western direction through the village of Weyerhauserin Chippewa county;and for many miles east and west of said village the road had never been fenced, nor cattle-guards constructed; and the road was finished, and a depot established at that place, in 1884. The depot buildings consist of a depot building and platform where passengers and freight were received and left) a water-tank, coal-shed, turn-table, and round-house, and there are several side and switch tracks. About two-thirds of a mile east of the depot building, and 600 feet east of the last side or switch track, there is a highway crossing, and at the crossing is the place where the plaintiff’s six oxen came in on the railroad track on the night of July 28, 1888, and three óf them were killed and three of them injured by the cars of the company. The plaintiff recovered, and the defendant has appealed to this court from the judgment.
But the learned counsel of the appellant cites Fowler v. Farmers' L. & T. Co. 21 Wis. 78, in which the definition is given as “ a place where passengers get on and off the cars, and where goods are loaded and unloaded, and all grounds necessary and convenient and actually used for these purposes.” It would seem that the court had copied this definition in the above instruction, as they are so near alike in language and scope, and so clearly sanction the instruction. The learned counsel of the respondent also cites this case as authority for the instruction. Where both parties so clearly agree as to the correctness of this instruction as
'Within'the widest definition found in any case the highway mentioned is far outside of the depot grounds of Weyerhauser. The eastern end of the side or switch tracks is as far as they could extend for any possible public purpose of a depot. The testimony clearly warranted the jury in finding.that the place where the oxen entered upon the track of the road was not within the depot grounds. The road should therefore have been fenced at that place, and a cattle-guard constructed in the highway crossing.
The other exceptions are quite immaterial. Exception is taken to the admission of the testimony of the witness Stitt,
Another exception is taken to the testimony of the plaintiff as a witness, who had no knowledge of any market price of cattle, as to the value of the oxen killed. The plaintiff testified that he had bought cattle for the last twenty years, and what the market value of those' cattle was on the 28th day of July last, and that he had bought and sold cattle there (that is, Chippewa Falls,— the nearest cattle market). The plaintiff certainly showed himself competent to testify as to the value of the oxen. The value of such property is a mere matter of opinion of the witnesses to aid the jury in determining the question, and there was no .testimony showing that the plaintiff’s estimate was too high. See the many cases cited in the brief of respondent’s counsel.
Exception is taken to the evidence, the instruction of the court, and the verdict of the jury, as to the cost of taking care of and trying to cure the oxen injured. The ground of the exception seemed to be that no foundation had been laid for such evidence in the complaint. It is alleged in the complaint “ that the plaintiff was put to large expense in caring for and attempting to heal the injuries and wounds of said three oxen so injured as aforesaid, and was deprived of their use,” etc. The learned counsel of the appellant must have been mistaken in supposing that this class of damages was not alleged in the complaint, for they cite authorities that show them proper in such a case if they are alleged as part of the damages; as, in Teagarden v. Het-
This embraces all the points made in the brief of the learned counsel of the appellant, and we are unable to find any error in the case.
By the Court.—The judgment of the circuit court is affirmed.