Cole v. Duluth, South Shore & Atlantic Railway Co.

Dodge, J. Two questions are raised upon this appeal: First, was the locus in quo depot grounds as matter of law? [462] Secondly, if not, is the defense of contributory negligence open to the defendant? 1. Where, as here, the grounds left unfenced and treated by a railway company as depot grounds are unusually extensive, and the locus in quo is outside of and beyond the switches and side tracks, and is not used as a place of access by the public or patrons, either for freight or passengers, and only for the passing or standing of trains, the question whether it is necessary for and used as depot grounds is properly for the jury. Fowler v. Farmers' L. & T. Co. 21 Wis. 77; Plunkett v. M., S. S. M. & A. R. Co. 79 Wis. 222;, Grosse v. C. & N. W. R. Co. 91 Wis. 482; Mills & Le Clair L. Co. v. C., St. P., M. & O. R. Co. 94 Wis. 336. 2. It is contended by appellant that the situation presented does not fall within the statute making liability of a railway company absolute in case of its failure to fence its road, for the reason that, as appellant claims, it had in good faith done so, and omitted the place in question only because considered depot grounds. This contention does violence to the words of the statute (sec. 1810, Stats. 1898). Until it shall build fences along both sides of its road (depot grounds excepted), and place cattle guards, the company is made absolutely liable. It is only after such fences and guards have been constructed that contributory negligence may be urged as a defense. Sec. 1810. If the 500 feet south of the highway in question are not in fact depot grounds, the defendant has not yet complied with the statute, and is absolutely liable for injuries occasioned by the omission to fence. By the Oov/rt.— Judgment affirmed.