22 Wis. 245 | Wis. | 1867
On the trial, the court was requested on behalf of the defendant to instruct the jury, that if they should find
It appears from tRe evidence that Mrs. Cunningham was standing, at tRe time of tRe accident, on tRe dock or landing of tRe public ferry-boat at tRe city of OsRkosR, wRen sRe was tRrown off or forced from tRe landing into Eox river, and injured. It is alleged in tRe-complaint, that tRe defendant caused tRe injury by negligently and unlawfully driving Ris team and Reavy double-wagon off tRe ferry-boat in sucR a manner as to strike against tRe dray of one CougRran— wRo was driving Ris Rorse and dray off from tRe ferry-boat at tRe same time — and to force and throw tRe dray and Rorse thereto attached against Mrs. Cunningham, thereby crowding or forcing Rer into the river. It seems that the ferryboat could not approach to the shore on account of the shallowness of the water at that point, and a dock or approach was made from the shore for a landing. On the upper side of this dock there was no railing or other protection; on the lower side there was a warehouse and wharf immediately joining which was elevated about a foot above the dock. Mrs. Cunningham was standing on the upper side of the dock, at the water’s edge, waiting to get on the ferry-boat, when she was crowded or forced into the river. It was claimed that she Rad taken an exposed position on the dock, and that thus, by occupying the position she. did, she was guilty of negligence which essentially contributed to the injury. ■ If this were so — and it is not impossible that a
But it is further insisted that the plaintiffs were entitled to recover in the action, because the defense set up in the answer and attempted to be proved, excluded all pretense of negligence on the part of Mrs. Cunningham. It is true that it is stated in the answer, by way of notice, that the injury to Mrs. Cunningham was produced by other causes; such as the want of care on the part of Coughran; defect in the ferry landing; and carelessness on the part of the employees of the city in the management of the ferry. I But there is likewise the general denial, which put in issue the right of the plaintiff to recover. It was not necessary to
By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.