67 Wis. 272 | Wis. | 1886
This appeal is from an order overruling a general demurrer to the complaint. The action is for personal injuries alleged to have been caused by the negligence of the defendant company.
The complaint alleges, inter alia, that the plaintiff was in the service of the defendant, and was sent by competent authority to switch cars in the yard of the company; that in doing so it became his duty to couple a car to a locomotive engine; that the engineer employed to operate the locomotive was careless and unskilful, to defendant’s knowledge; that such locomotive was so worn, broken, and decayed that it was unfit for use, which the company also well knew; and in consequence of the unskilfulness and 'carelessness of the engineer, who backed his locomotive when he should have moved it forward, and a specified defect in the locomotive, of which the plaintiff was ignorant, the plaintiff suffered the personal injuries of which he complains.
It seems, to be conceded in the argument of counsel for the defendant that had the complaint averred the ignorance of the plaintiff of the character of the engineer and the unfitness for use of the locomotive, a cause of action would have been stated therein; but, whether it is so conceded or not, the proposition is undoubtedly a correct one. Assuming, however, that the plaintiff’s right of action depends upon his ignorance of those conditions, we think it is not incumbent on him to aver such ignorance, ’but rather it is for the defendant to aver and prove that he had knowledge thereof. This is the only proposition we determine on this appeal. We conclude that the complaint states a cause of action.
By the Court.— Order affirmed.