62 Wis. 411 | Wis. | 1885
It is alleged in the complaint that the plaintiff’s intestate, while engaged as a conductor in running a train upon the defendant’s road in the exercise of ordinary care, was killed by the train being thrown off the track, and the cars wrecked, in consequence of the train running over a steer or heifer which had strayed upon the track. It is alleged that the railroad track at the place where the animal got upon the same, and where it was run over by the train, or where the accident occurred, was wholly unfenced, and had never been fenced, though it was outside of depot grounds, and was not at a farm or highway crossing. Also that there was no pond, watercourse, di,tch, embankment, or other sufficient protection, rendering a fence unnecessary at that place to prevent cattle from straying upon the right of way of the defendant. It appears that the railroad had been built and operated over this track for more than three months, while that portion of the road had remained wholly unfenced, and exposed to the inroads of cattle upon the same. It is alleged that the accident was caused by the negligence of the defendant in failing to fence its road, thereby permitting cattle to come upon and be run over on its track. There are other acts of negligence stated, but the failure to fence was the principal ground of liability relied on upon the argument.
Our statute makes it the duty of every railroad corporation operating a railroad to erect and maintain on both sides of any portion of its road (depot grounds excepted) sufficient fences as prescribed; also cattle-guards at crossings, in order
The validity of this statute is challenged in an elaborate argument by defendant’s counsel, because it excludes contributory negligence as a defense to an action brought for damages occasioned to a person or animal by want of a fence. It is doubtless true that the provision imposes an
The question in this case is, Does the- provision violate any principle of the state or federal constitution? Without going into any discussion of that question, we state our conclusion that it does not. Suppose the legislature should enact that, as to any road thereafter to be built, such corporation should erect suitable fences along its track, within three months from the time of commencing to operate the same, so far as the road was operated, and a failure to build such fences should work a forfeiture of its franchises? Could the constitutionality of such a law be successfully assailed or questioned? Such a law might be harsh and very unwise, but it would be difficult, we think, to overthrow it, as being a violation of any constitutional right or privilege.
Rut this discussion is not strictly called for in this case. It is alleged that the plaintiff’s intestate was in the exercise of ordinary care when the train was thrown from the track by collision with the animal, and he -was killed. What, therefore, has been said upon the point that contributory negligence is not an element in determining the defendant’s
It appears from the complaint that the plaintiff’s intestate had been for some time in the employ of the defendant as conductor, running trains over this road. It is said that he was chargeable with notice that there was no fence along the right of way, and by continuing in the service without objection he voluntarily assumed the risk of the dangers known to him. To this position the plaintiff’s counsel makes this answer: (1) That the most that can be claimed is, if deceased knew that the road was unfenced, as he doubtless did, he must also be presumed to know that the statute protected him in express terms by declaring that the company should be liable for all damages which he might sustain, occasioned in any manner, in whole or in part, by the want of a fence; and (2) that by continuing in his employment
By the Gourt.— The order overruling the demurrer to the complaint is affirmed.