Rideout v. Milwaukee, Lake Shore & Western Railway Co.
Wisconsin Supreme Court
APPEAL from the Circuit Court for Winnebago County. This is an appeal by the defendant railway company from an order overruling its demurrer to the complaint. The only ground of demurrer alleged is that two causes of action are improperly united. The complaint states two causes of action in separate counts.
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APPEAL from the Circuit Court for Winnebago County. This is an appeal by the defendant railway company from an order overruling its demurrer to the complaint. The only ground of demurrer alleged is that two causes of action are improperly united. The complaint states two causes of action in separate counts. The first count charges that the railroad company neglected to fence its railroad at a certain point, by reason whereof an ox of the plaintiff strayed upon the railroad track and was run over and killed by a passing train. The other count charges that plaintiff delivered a number of horses…
1Opinion of the CourtLyoN, C. J.
The first count in the complaint states a cause of action ex deUeto. If the second count also sounds in tort, there is no misjoinder of .causes of action, and the demurrer was properly overruled; otherwise, it should have been sustained. Hence the controlling question is, Does the second count state a cause of action ex delicto? We think it does. True, it sets out the contract of carriage, but the grmamen of the claim is the breach of duty by the railway company in that it so negligently and carelessly carried the horses that they were injured and one of them was killed. This court has held,…
2Cases cited4 opinions
- Brown v. Chicago, Milwaukee & St. Paul Railway Co.Wisconsin Supreme Court · 1882
- Nelson v. HarringtonWisconsin Supreme Court · 1888
- Smith v. Chicago & Northwestern Railway Co.Wisconsin Supreme Court · 1880
- Wood v. Milwaukee & St. Paul Railway Co.Wisconsin Supreme Court · 1873
3Cited by3 opinions
- Nelson v. Great Northern Railway Co.Montana Supreme Court · 1903
- Wernick v. St. Louis & San Francisco RailroadMissouri Court of Appeals · 1908
- Boehrer v. Juergens & Anderson Co.Wisconsin Supreme Court · 1907