Hulehan v. Green Bay, Winona & St. Paul Railway Co.

58 Wis. 319 | Wis. | 1883

LyoN, J.

The learned counsel for the defendant company frankly admit in their argument that if the facts stated in the complaint in this action are sufficient to bring the case within the rule of Dorsey v. Construction Co., 42 Wis., 585, or of Bessex v. C. & N. W. R’y Co., 45 Wis., 477, the demurrer was properly overruled. But they seek to distinguish this case from both the above cases, and-the grounds of distinction urged (if we correctly understand their argument) are that the averments of the complaint herein show conclusively (1) that the plaintiff himself was guilty of negligence which contributed directly to cause the injuries of which he complains; and (2) if the plaintiff was not thus negligent, that the injury was caused by th§ negligence of his co-employees, for which the defendant is not liable. Neither of these propositions of fact was conclusively established in either of the two cases above citecl.

The argument that the plaintiff is chargeable with contributory negligence seems to rest entirely upon the assumption that the complaint shows the plaintiff had been accustomed for several years td couple and uncouple cars at Plover, the station where he was injured, and hence that the plaintiff is chargeable with notice of the presence of the obstructions, and with the duty of avoiding them. We find no such averment in the complaint, or any averment inconsistent with the hypothesis that, when injured, the plaintiff was coupling cars at that station for the first time, and then first became aware that the obstructions complained of were on or near the track. It may be that the plaintiff knew of the obstructions, and, in the exercise of reasonable care, ought to have avoided them; but the complaint does not'show that such were the facts. That can only be determined upon the evidence.

As to the claim that the complaint shows the injury to have been caused by the negligence of a co-employee, it is sufficient to say that the complaint charges throughout that the injuries complained of resulted from the negligence of the defendant company in respect to a matter wherein the company owed, or may have owed, a duty to the plaintiff.

We think the case is ruled by Bessex v. C. & N. W. R'y Co., supra, and the cases there cited, and hence that the demurrer to the complaint was properly overruled.

By the Court.— Order affirmed.