Sika v. Chicago & North-Western Railway Co.

21 Wis. 370 | Wis. | 1867

Dixon, C. J.

A statute which refers to and adopts the provisions of another statute, is not repealed by the subsequent repeal of the statute adopted. Wood v. Hustis, 17 Wis., 416; 19 Wis., 453. Chapter 64, Laws of 1859, adopted the notice required by section 3, of chap. 134, Laws of 1858 (R. S., p. 818). The repeal of section 3 by chapter 116, Laws of 1864, does not obviate the necessity of giving the notice prescribed by that section in the cases provided for in chapter 64.

No notice of the intended examination of the plaintiff as a witness in bis own behalf was given, and bis admission against the objection of the defendant was irregular. It is very probable that the omission to give the notice caused no injustice to the defendant; but a positive requirement of statute cannot be dispensed with for that reason. The proceedings are in this respect erroneous, and the judgment must be reversed.

The other objection urged by the defendant is, we think, wholly untenable. It is no bar to an action for a trepass or wrong done to the plaintiff, for the defendant to show that the plaintiff has himself been guilty of another trespass, or a distinct injury to the property or rights of the defendant. It is no answer to this action for killing the cattle of the plaintiff, that the plaintiff had previously trespassed upon the lands of the defendant constituting the line of its road, by driving the same cattle upon or across the same. The cattle, once in the pasture of the plaintiff, were lawfully there; and the jury found, under instructions sufficiently favorable to the defendant, that the trespass of the plaintiff in driving them across the road had no connection with the subsequent acts by which they were killed. We do not well see how they could have found otherwise. The gist of the action is the neglect of the defendant to rebuild and maintain the fence along the line of its road, as required by law. The statute makes every railroad company absolutely liable for all damages to cattle or other domestic animals, occasioned by the failure to erect and maintain a fences as therein required. Brown v. Mil. & Prairie du Chien Railway Co., ante, p. 39.

By the Court. — Judgment reversed, and a new trial awarded.