Bremmer v. Green Bay, Stevens Point & Northern Railroad

(1) Railroads: Fences: Injury to animals. (2) Reversal of judgment: Improper remarles of counsel to jury. 1. Under sec. 1810, R. S. (ch. 198, Laws of 1881), in order to recover for the negligent killing of an animal upon a railroad track at a point where it was unfenced, the owner must show that such animal got upon the trade at a point where the company was bound to maintain a fence and had neglected to do so. So, where there was nothing in the evidence to show that the animal did not go upon depot grounds, which the company was not bound to fence, and thence along the track to the place where it was killed, a non-suit should have been granted. 2. Remarks of counsel to the jury, appealing to prejudices foreign to the case in evidence, persevered in after a reprimand by the court, may be good ground for a reversal.

APPEAL from the Circuit Court for Portage County. The case is thus stated by Mr. Justice Cassoday: “This action is for the value of a cow killed June 14, 1882, by a passing locomotive of the defendant on its railroad, at a point about 2,300 feet northwest of the defendant’s depot, in the village of Plover. It was originally brought in justice’s court, and taken to the circuit court on appeal. “ The railroad had been in operation for more than three months, but had not been fenced at the point where the cow was killed. The evidence on the part of the plaintiff tends to show that he had been in the habit of keeping his cow nights at his barn, situated on the west side of his block and fronting to the west, and which barn was a few rods north of defendant’s railroad track running east from its depot, and about 100 feet east, or a very little north of east, from its depot; that the lands between the front of the plaintiff’s barn and the railroad track on the south and the depot on the west, or a little south of west, were unfenced and open to the common; that the tracks of the defendant’s railroad immediately west and northwest of its depot formed a T, and that in and about the T, and for a long distance west and northwest of the depot, and for a long distance north and west of all the tracks of the defendant’s railroad, there were no fences, but the lands were wholly open to the common ; that the place where the cow was killed was about 1,800 feet northwest from the depot grounds; that west and northwest of where the cow was-killed was unfenced and open to the common; that east of the track where the cow was killed was unfenced and open to the common as far as the main street, in Plover, running north and south, and which passed on the easterly side of the plaintiff’s block, on the west side of which the barn-was situated. The plaintiff turned his cow out into the street on the west side towards the depot about six o’clock A. M,, June 14,1882, but dicl not,, notice in what direction she went. She was killed the same day, about eleven o’clock A. M. ‘•'At the close of the plaintiff’s testimony, the defendant moved for a nonsuit, which was overruled, and the defendant excepted. Under all the testimony and the charge of the court' the jury returned a verdict for the plaintiff, and from the judgment thereon the defendant appealed.” [The following remark by the plaintiff’s attorney in opening the case to the jury, was excepted to by the defendant: “ I say that the Green Bay, Stevens Point <& Northern Railway is a part of the Green Bay, Winona & St. Paul Railroad Company, a wheel within a wheel.” The same attorney also read sec. 1810, R. S., to the jury, an objection on the part of the defendant having been overruled. During the argument to the jury by plaintiff’s attorney the following proceedings were had: Mr. Lamoreux: I said to you, gentlemen, that my client was a poor blacksmith, that he was pounding out the means by which he had to pay his proportion of the expense that the community in which he lived had incurred to aid this railroad company in constructing their road, and that is as lar as I care to go upon that point, and I believe I am justified in going that far, inasmuch as the gentleman himself alluded to the merits of railroads in general. Mr. Case: The gentleman has said that his client was trying to work out a tax to pay towards aid for this railroad. The fact is, that this railroad company has never had any aid by the town of Plover. I dislike exceedingly to interrupt counsel, but when he drags in those outside matters, and matters that are false, I think I have a right to ask that counsel be restricted. The Court: The counsel know better and know that they should talk about the law and testimony in the case. Mr. Lamoreux: I then stated to you the position of my client; whether the client that the gentleman represents, has any merits or not I don’t care, so far as its general dealings with the community is concerned. I did not intend, and don’t now, to urge anything upon you that you are to consider, except the questions that arise upon the issue that is presented to you to try. Mr. Case: I desire here to enter an exception to such language being used, and to the court’s remark.] For the appellant it was argued, inter alia, that the remarks of counsel in which he sought to identify the defendant (a weak company owning but six miles of railroad) with a more wealthy and powerful corporation, were intended to prejudice the jury and convince them that a verdict against the defendant would not hurt it, and should work a reversal. Brown v. Swineford, 44 Wis. 291. It was error to permit counsel to read the statutes to the jury. Tuller v. Talbot, 23 Ill. 357; Sprague v. Craig, 51 id. 288; Philpot v. Taylor, 75 id. 309; Chicago v. McGiven, 78 id. 347; People v. Anderson, 44 Oal. 65. To render the company liable the cow must have entered upon the track at a point where a fence was required, and the sufficiency of the fence at the place of entry and not at the place of killing is the material question. C., B. db Q. R. R. Co. v. Farrelly, 3 Brad well, 60; Bellefontaine R’y Co. v. Suman, 29 Ind. 40; L, P. db C. R, W. Co. v. Caudle, 60 id. 112; T, W. & TU. R. W. Co. v. Stevens, 63 id. 337; Wabash R’y Co. v. Forshee, 77 id. 158; M. P. R. R. Co. v. Leggett, 27 Kan. 323; A. db M. R. R. Co. v. Cash, id. 587; Razor v. St. L., I. M. db S. R’y Co. 73 Mo. 471; Snider v. St. L., 1. If. de S. R’y Co. id. 463; J., M. db 1. R. R. Go. v. Lyon, 72 Ind. 107; Witthouse v. A. db P. R. R. Co. 64 Mo. 523; Bennett v. C. db F. W. R’y Co. 19 Wis. 145; 49 Am. Deo. 270.