Herrell v. Chicago, Milwaukee & St. Paul Railway Co.

Dodge, J. Appellant’s first position involves the contention that there was no evidence justifying the inference of the [608] jury that the horse which was killed was, at the time of being run down, within the right of way of the defendant, so that the event could be ascribed to the defective condition of the cattle guard. After a careful perusal o^ the evidence, we are unable to concur in this view. The rule has been many times declared in this court that if there is any credible evidence, which, if believed by the jury, might support their conclusions, it is not for this court, upon appeal, to set them aside. In this case the evidence is circumstantial, but there is evidence which, if believed, tends to prove that a horse did cross into the right of way over the defective cattle guard; that he came onto the track some 1,200 feet north, and thence ran toward the crossing; that horse hairs were found upon the cattle guard; and that the plaintiff’s horse was killed. These facts might justify the inference that the horse so killed, having strayed up the right of way and sought to escape the fast-running train, was run down just before he reached the cattle guard, although there was evidence from other witnesses which, if believed, made that fact impossible. Appellant further insists that the evidence conclusively establishes contributory negligence in the plaintiff. The facts as to the conduct of the plaintiff’s brother, acting for him, are substantially undisputed. The only one upon which negligence can be predicated is the leaving open of a pasture gate a mile and a quarter from the railway during a half hour, while the cows were being milked at the closely adjoining barnyard. While it has been held that it is contributory negligence, in law, to allow horses or cattle to run at large adjoining an unfenced or defectively fenced railroad track,, no case justifies, or at any rate requires, an inference of negligence from so slight an act as this. We cannot say that the jury might not, as reasonable men, having knowledge of the custom amongst farmers, decide that such an act as the evidence discloses here was within the care customarily exercised by ordinarily careful persons under like circumstances. [609] The horses were some seventy rods away from the gate, quiet and gentle, with no known tendency to escape from the pasture. Their hams were in the opposite direction from the railroad, and no evidence discloses anything likely to attract them in the direction of the latter. We must hold that the inference as to negligence from such conduct was within the province of the jury, and that we cannot set aside their decision thereon. Appellant’s third assignment of error, as argued in its brief, is based upon the contention that the horses, being astray upon the highway, were, in legal effect, trespassers thereon, and that defendant owed to them no active duty of care. This contention rests upon the well-known rule that one maintaining a dangerous place by the common law owes a duty of care to prevent injury thereby only to those lawfully or by his invitation subjected to the peril. It, however, overlooks the consideration that the duty and the liability of railroads with reference to fences and cattle guards are not merely such as the common law imposes, but are regulated and increased by statute. Sec. 1810, Stats. 1898. The duty to exercise care in maintaining such structures is absolute, and is due to all persons. Liability for breach of that duty is also absolute, except for contributory negligence on the part of the person suffering injury. Hence the fact that animals are trespassers on the land whence they come in contact with a defective railroad fence or cattle guard in no wise exempts the company from the liability imposed by the statute, which contains no such exception. McCall v. Chamberlain, 13 Wis. 637; Dunnigan v. C. & N. W. R. Co. 18 Wis. 28; Pitzner v. Shinnick, 39 Wis. 129; Curry v. C. & N. W. R. Co. 43 Wis. 665, 684. We find none of the errors which are argued by appellant well assigned. By the Court. — Judgment affirmed.