
    Habenicht, Respondent, vs. Chicago, St. Paul, Minneapolis & Omaha Railway Company, Appellant.
    
      December 12, 1905
    
    January 9, 1906.
    
    
      Railroads: Fences: Killing of horse on track: Depot grounds: Contributory negligence: Court and jury.
    
    1. In an action for the killing of a horse upon a railway track, the question whether the place where the horse got upon the track, a few rods from a depot building, was within the limits of the depot grounds, is held, upon the evidence, to have been one for the jury.
    
      2. Upon evidence showing, among other things, that plaintiff had left his horses standing unhitched and unattended while he was trying to get one of his cows clear from another .team, and upon pleadings raising the issue, it is held that the question of contributory negligence should have been submitted to the jury, the horse which was killed having got upon the track through a fence which was out of repair, not by reason of a* failure to fence the track, so that the liability of the railway company was not absolute.
    
      Appeal from a judgment of the circuit court for Douglas county: A. J. ViNJE, Circuit Judge.
    
      Reversed.
    
    This is an action to recover $125 as the value of a horse belonging to the plaintiff and killed by a locomotive of a passenger train running upon the tracks of the defendant at the place alleged February 15, 1903. The complaint alleges, in effect, that the horse, on the day and year named, “without any fault or negligence on the part of the plaintiff, escaped from a field adjoining said railroad through” a defective fence which the defendant had failed and neglected to keep up and' maintain, and had negligently allowed and suffered to become unsafe and out of repair, and went upon the track of said railroad and was there run against by defendant’s locomotive and killed, to the damage of the plaintiff in the amount stated.. The defendant answered, by way of admissions, denials, and' counter allegations, to the effect that the injuries to the plaintiff’s property alleged in the complaint, if any, were caused by the carelessness and negligence of the plaintiff, and not by any fault, neglect, or negligence of the defendant, its agents ox-servants.
    At the close of the tidal the jury returned a special verdict to the effect (1) that the place where the plaintiff’s horse went upon the defendant’s property was not within the limits of its-depot grounds at ITines, and (2) that they assessed the plaintiff’s damages at $125. From the judgment entei'ed thereon for the amount stated, with $29.40 costs and disbursements,, the defendant appeals.
    
      Solon L. Perrin> for the appellant.
    For the-respondent the cause was submitted on the brief of' J ames R. Hile.
    
   Cassoday, C. J.

There is evidence tending to prove that Febimary 14, 1903, the plaintiff, with an emigrant car loaded’ with furniture, horse feed, horses, and cattle, arrived at ITines-station; that on the next morning he unloaded the car upon two vehicles belonging to farmers; that they then drove south’ from the station some 800 feet to the track of the railroad', crossing, the plaintiff following behind; that at that point two-of the plaintiff’s cows, instead of crossing the track, went south down the track; that one of the farmers took charge of-the plaintiff’s horses while he went after the cows; that the running of the cows frightened one of the teams and it started to run with or along with one of the cows; that while the plaintiff was working to get the cow, or clear her from the team, he left his horses standing without being hitched or cared for in any way, and they then started back toward the railroad track, but, instead of following the road on which they came, they took a short cut along another road which brought them to the railroad track a few rods south of the. depot building, the precise distance being in dispute, and. whether it was within the limits of the depot grounds being, one of the questions submitted to the jury; that from the point where the horses so came upon the railroad track they ran north along the railroad track for about a mile, where they were overtaken by a freight train and one of them killed.

The case is very simple, notwithstanding twenty-two errors, are assigned. We cannot say, as a matter of law, that the place where the horses got upon the track was within the limits-of the depot grounds. Nor can we say that the form in which that question was submitted to the jury was prejudicial to the defendant. This court has often stated that the form of such-verdict is very much in the discretion of the trial court. After speaking of the gap or defect in the fence where the hoi’ses went onto the railroad track and defining depot grounds, the court charged the jury, upon the first question submitted, that “if from the evidence you are satisfied that it [the place where the fence was defective] was within the limits of the depot grounds, then you will answer it [this question] in the affirmative, and, if not so satisfied, you will answer it in the negative.” This portion of the charge made the defendant absolutely liable if tbe defective place in. tlie fence was not witbin tbe limits of tbe depot grounds. It completely eliminated from the case the question of tbe plaintiff’s contributory negligence. And yet tbe complaint alleged that tbe horse was killed “without any fault or negligence on the part of tbe plaintiff,” and such allegation was put in issue by tbe denials in tbe answer, and the answer also alleged that suck inj uries to tbe plaintiff’s property, if any, were caused by tbe carelessness and negligence of tbe plaintiff, and not by any fault, neglect, or negligence on tbe part of tbe defendant. Such issue so made by tbe pleadings was never submitted to nor determined by tbe jury, notwithstanding the learned tidal court was expressly requested to submit such question, and was also requested to instruct the jury on tbe question of tbe plaintiff’s contributory negligence in allowing bis horses to escape from bis control. Tbe statute only imposes such absolute liability in cases where the railway track has never been fenced, as required by tbe statute. Sec. 1810, Stats. 1898. But tbe same section expressly provides that “after such fences and cattle-guards shall have been in good faith constructed such liability shall not extend to damages occasioned in part by contributory negligence nor to defects existing without negligence on tbe part of the corporation or its agents.” In such cases contributory negligence has repeatedly been held to be a complete defense. Richardson v. C. & N. W. R. Co. 56 Wis. 347, 14 N. W. 176; Bremmer v. G. B., S. P. & N. R. Co. 61 Wis. 114, 20 N. W. 687; Wickham v. C. & N. W. R. Co. 95 Wis. 23, 69 N. W. 982; McCann v. C., St. P., M. & O. R. Co. 96 Wis. 664, 71 N. W. 1054; Perrault v. M., St. P. & S. S. M. R. Co. 117 Wis. 520, 530, 94 N. W. 348. No other questions are of sufficient importance to call for consideration.

By the Oourt. — The judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial.  