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Mackey vs. Stafford, imp.

In respect to the public sale upon the mortgage of the 3d of April, 1875, it was ably urged by the eminent counsel of the appellants, that the sale made to the son of the plaintiff was, under the circumstances, a sale to the plaintiff himself, and continued his mortgage relation to the property, and that he still remained the trustee of the mortgagor, and must account for his future disposition of the property. As we view the effect of the evidence, and especially of the subsequent agreement of April 8, 1876, between the plaintiff and the defendant Stafford, this objection has been fully waived by the only party who now seeks to set it up. This agreement in writing was a subsequent and independent contract in respect to the property, between the defendant Stafford individually and the plaintiff, in which its absolute ownership by the plaintiff is admitted and conceded. It commences with the language: "Whereas said first party [Mackey] is the owner of certain cooperage and broom-handle stock, lately owned by and transferred to said party by J. P. Stafford & Co., and whereas, also, said J. P. Stafford & Co. sold said Mackey certain wheel machinery, stave-mill and lands adjacent thereto," etc. This language operates as a full and complete confirmation of all the sales, and estops the defendant Stafford from questioning the absolute ownership of the property by the plaintiff, upon which the very agreement itself is based. The defendant Carver does not seek to raise the question, nor ask to redeem. There appears to be no error in the findings of the circuit

court.

RYAN, C. J. I concur in the judgment of this appeal, on the ground that the default of the defendant Carver is conclusive against any right he might have to question the respondent's absolute title derived under the chattel mortgages, and that any right of the appellant to redeem under the chattel mortgages, or for an account of the amount realized by the respondent from the sale of the mortgaged chattels, is waived

Curry vs. The Chicago & Northwestern Railway Co.

by and merged in the agreement of the 8th of April, which he pleads. These positions of the two mortgagors are quite consistent. They had been partners, and gave the chattel mortgages as such. The one abandons all right under them; and the other takes a new right to himself alone, inconsistent with any right of the partnership to redeem or for an account, upon terms which he fails to fulfill. Both concur, therefore, in extinguishing the right of the partnership to redeem, or to question the respondent's proceedings under the chattel mortgages. And the appellant establishes no right in himself under the agreement for his separate benefit.

By the Court. The judgment is affirmed.

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CURRY VS. THE CHICAGO & NORTHWESTERN RAILWAY COM

PANY.

RAILROADS: FENCES: CONTRIBUTORY NEGLIGENCE. (1) Statutes as to liability of railroad companies for injuries to animals from failure to fence, held cumulative. (2) Contributory negligence a defense in all such cases. (3, 4) When question of plaintiff's negligence for the jury.

1. Secs. 30 and 31, ch. 119 of 1872 (requiring railroads to be fenced, and declaring the liabilities of companies for injuries to domestic animals occasioned by failure to fence), are not repealed or modified by ch. 248 of 1875; but the provisions of the latter are cumulative to those of the former.

2. In an action against a railroad company for injury occasioned by failure either to erect or to maintain fences on the line of its road, as in other actions for negligence, contributory negligence of the plaintiff is a defense. The cases in this court on the subject reviewed.

3. In such an action, for injury to a domestic animal, the mere fact that the animal was a trespasser on defendant's road, or that it passed thereon from land not belonging to the plaintiff, will not defeat a recovery. 4. Plaintiff, living about three-fourths of a mile from defendant's track, which he knew to be unfenced, permitted his cow to pasture, in summer (presumably with other cattle), on a large tract of uninclosed grass land,

Curry vs. The Chicago & Northwestern Railway Co.

extending from the neighborhood of his residence to the track; and she passed upon the track from said land, and was injured. Held, that upon these facts the question of contributory negligence, being open to doubt and debate, was for the jury. Lawrence v. Railway Co., 42 Wis., 322, distinguished.

APPEAL from the Circuit Court for Sauk County.

Action for the value of a cow alleged to have strayed upon defendant's railroad at a point where the same had never been fenced, and to have been there killed by a train, without fault on plaintiff's part. Answer, a general denial, and an averment of contributory negligence.

On the trial, it was stipulated that "plaintiff lived about three-fourths of a mile from Ableman's station [a station on defendant's road], and about the same distance from the place where the cow was injured;" and that "there were about 300 or 400 acres of uninclosed lands about the place of injury and the station." Plaintiff admitted that his cow was running at large on the commons or uninclosed lands and public highway near Ableman's station for the purpose of pasturing; that it was his common practice to allow her to run at large for that purpose; and that defendant was guilty of no other negligence than its failure to fence. Defendant admitted that its road had been in operation for five years at the place where the injury occurred; that the track at that place "was not fenced as the statute directs;" that the premises there were not part of the depot grounds, but were "open common, open to the public highway;" that the cow was killed by a train on its road; and that she was worth the amount claimed by the plaintiff as damages.

Some evidence that plaintiff had no pasture lands on his farm, and no means of pasturing his cow except on the uninclosed lands in the neighborhood, and that "the 200 or 300 acres admitted to be uninclosed" were "used for pasturing purposes by people in the neighborhood," was ruled out on defendant's objection; plaintiff admitting that he "could not

Curry vs. The Chicago & Northwestern Railway Co.

show any understanding, more than custom, by which he was pasturing there." There was no other evidence.

Defendant's motion for a nonsuit was denied. The judge refused to instruct the jury at defendant's request, that "the fact that plaintiff turned the cow out to pasture in the public highway and uninclosed lands through which defendant's railway runs, about three-fourths of a mile from his residence, knowing that the railway was unfenced, was gross negligence on his part." He instructed the jury, in substance, that if the cow strayed upon defendant's road, at a point where the company was bound by statute to maintain a fence, and such fence would have prevented her from going upon the road, defendant was liable, unless plaintiff was guilty of a want of ordinary care in permitting her to be upon the lands from which she passed upon the track; and that it was for them to determine whether, under all the circumstances of this case, he was guilty of such want of ordinary care.

The plaintiff had a verdict and judgment; and defendant appealed.

For the appellant, a brief was filed by Smith & Lamb, and the cause was argued orally by Mr. Lamb. They contended, 1. That, as the facts were undisputed, it was the duty of the court to declare the law upon them. Dascomb v. Railway Co., 27 Barb., 227; Toledo, etc., Railway Co. v. Goddard, 25 Ind., 197; Artz v. Railroad Co., 34 Iowa, 160; Rothe v. Railroad Co., 21 Wis., 256; Langhoff v. Railway Co., 23 id., 43; Nicks v. Marshall, 24 id., 139; Delaney v. Railway Co., 33 id., 67. 2. That the owner of domestic animals who turns them into the highway to pasture, violates the law, and the animals are trespassers while in the highway, or when they pass on adjoining land, even if unfenced (Bush v. Brainard, 1 Cow., 78, note a; Rust v. Low, 6 Mass., 94; Stackpoole v. Healy, 16 Mass., 33; Wells v. Howell, 19 Johns., 385; Holloday v. Marsh, 3 Wend., 142; 3 Black. Com., 210; 3 Kent's Com., 432; Harrison v. Brown, 5 Wis., 27-31);

Curry vs. The Chicago & Northwestern Railway Co.

and that permitting cattle to be at large upon or in the vicinity of a railroad, or to range in places where it is even remotely probable that they will stroll upon the track, is grossly and culpably negligent, on account of the danger to which it exposes the life and limbs of passengers and the persons of employees, and such negligence is in its nature continuing as well as gross. Stucke v. M. & M. Railroad Co., 9 Wis., 213; C. & N. W. Railway Co. v. Goss, 17 id., 433. 3. That contributory negligence of the plaintiff is a defense in such a case; that the liability declared by the statute (sec. 1, ch. 268 of 1860, reënacted by sec. 30, ch. 119 of 1872) is merely that which the courts would enforce as a sequence of the duty imposed, and in such cases contributory negligence defeats a recovery (Blyth v. Topham, Cro. Jac., 158; Bush v. Brainard, 1 Cow., 78; Stucke v. Railroad Co., 9 Wis., 216); and that this view is sustained by the language of the statute, which makes the company liable only for injuries occasioned by the failure to fence. Ricketts v. Railway Co., 12 C. B., 160; Manchester, etc., R'y Co. v. Wallis, 14 id., 213; Ellis v. Railway Co., 2 H. & N., 424; Perkins v. Railroad Co., 29 Me., 307; Cornwall v. Railroad, 28 N. H., 161; Chapin v. Railroad, 39 id., 53, 564; Mayberry v. Railroad, 47 id., 391; Trow v. Railroad Co., 24 Vt., 487; Jackson v. Railroad Co., 25 id., 150; Morse v. Railroad Co., 27 id., 49; Bemis v. Railroad Co., 42 id., 375; Eames v. Railway Co., 98 Mass., 566; Ross v. Railroad Co., 6 Allen, 87; Ingersoll v. Railroad Co., 8 id., 440; P., Ft. W. & Ch. R'y Co. v. Methven, 21 Ohio St., 586; C. & A. Railroad Co. v. Fears, 53 Ill., 115; Berry v. Railway Co. (in supreme court of Missouri), 5 Cent. L. J., 117; Leavenworth, etc., Railroad Co. v. Rice, 10 Kan., 426; Walsh v. Railroad Co., 8 Nev., 110; Keech v. Railroad Co., 17 Md., 32; Macon & W. Railroad Co. v. Davis, 13 Ga., 68; M. & C. Railroad Co. v. Bibb, 37 Ala., 699. By reason of the peculiar language of the New York act of 1850 (ch. 140, sec. 44), requiring railway companies to fence their tracks, it

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