{concurring). I concur in the result but I disagree that Anderson v. Green Bay & Western Railroad, 99 Wis. 2d 514, 299 N.W.2d 615 (Ct. App. 1980), is of any precedential value in deciding this case. The court of appeals statement in Anderson that the statute applies only to "injuries to people and cattle ... caused by collisions between trains and cattle,” Id. at 521, 299 N.W.2d at 619, is, as the majority notes, contrary to supreme court precedent.
I believe the proper answer is that the injuries to Dean were not "occasioned in any manner, in whole or in part, by the want of ... [a] fence[ ] ...." Sec. 192.33(2), Stats.
The ordinary rules relative to proximate cause are not applicable to sec. 192.33, Stats. Alexander v. Minneapolis, St. P. & S.S.M.R. Co., 156 Wis. 477, 481, 146 N.W. 510, 511 (1914), appeal dismissed, 239 U.S. 635 (1916). "Under this statute, if the want of a fence contributes in any manner to cause the injury the defendant is liable.” Id. The mere fact, however, that the right of way is unfenced is not enough to subject the railroad to liability unless an injury to a person results from a collision with a vehicle operated on the tracks by the railroad. In Vaillant v. Chicago & N.W.R. Co., 163 Wis. 548, 158 N.W. 311 (1916), the court held that the lack of a fence had no causal relation to the death of a child who boarded a railroad car in Green Bay and was killed when he attempted to jump off in DePere. Likewise, in Wendorf v. Director General of Railroads, 173 Wis. 53, 180 N.W. 128 (1920), the railroad was ab2solved of liability when the plaintiff entered upon the railroad right of way and diverted from his travel on a footpath adjoining the right of way to engage in play on the railroad cars. The plaintiff argued that the railroad was liable for *184not having built a cattle guard which, presumably, would have deterred the plaintiff from mounting the railroad cars.
The distinction which the cases appear to make is that the absence of a fence may occasion an injury, in whole or in part, if the injured person is struck by a train operating on the tracks but not if the injured person attempts to use the railroad cars for some frolic of his own. The injured person’s act of trespass on the railroad cars is regarded as an intervening event which relieves the railroad from liability under the statute. I believe this is a valid distinction and one which we should recognize in qualifying the preceden-tial value of Anderson.