Potter v. Chicago & Northwestern Railway Co.

20 Wis. 533 | Wis. | 1866

Downer, J.

It is contended that the complaint is insufficient because it does not aver that the deceased, at the time of the fatal accident, was in the exercise of ordinary care, or was free from negligence on her part. \ The complaint alleges that the injury was caused by the negligence of the defendant. The complaint in this respect is according to most of the precedents of declarations, English_and American. There are, however, precedents with averments in form that the plaintiff was in the exercise of ordinary care, or was free from negligence on his part. In Gough v. Bryan, 2 M. & W., 770, the declaration, as to the particular matter under consideration, was in the form of the complaint before us, and was for driving the coach of the defendant against the plaintiff’s carriage and thereby injuring his sons. The defendant plead the general issue, and also a special plea setting up the plaintiff’s negligence. On demurrer to the special plea, it was held bad, as amounting to the general issue. In the case of Bridge v. The Grand Junction Railway, 3 M. & W., 244, the declaration was in the same form; and on a demurrer to a special plea setting up that the injury was caused by the negligence both of the plaintiff and defendant, it was held that the plea was bad because it amounted to the general issue ; and also bad in substance, because it was not sufficient to aver that there was negligence on the part of the plaintiff, but the defendant must also aver that the plaintiff,by ordinary care, could have avoided the consequences of the defendant’s negligence. The case of Butterfield v. Forrester, 11 East, 60, was cited as authority to that effect. It was also said by PARK, B., that even if the plea had contained such allegation, it would still be equivalent to not guilty. I do not see how this could be, unless the general denial put in issue the want of ordinary care, or the negligence, of the plaintiff as well as that of the defendant. If the declaration in each of these cases had been defective, the demurrer to the special plea in each case would have reached back to the declaration as the first defective pleading; but it did not occur either to the counsel or the court that there was any defect in the declaration in either case. And we have not been referred to any case where such declaration has been held defective. In many of the cases (a number of which have been cited by counsel), where the question has arisen whether the plaintiff was bound, in order to make out a prima facie case, to prove that he exercised ordinary care, the declaration was in the form of that in the case before us. Tbe averment that the death of Prances L. Bishop was caused by the negligence of the defendant, must, we think, be regarded in legal effect the same as though it had been averred that the sole immediate cause thereof was the negligence of the defendant. It is unnecessary for us to decide the question, so much discussed by counsel, whether the plaintiff, at the trial, to make out a prima facie case, must prove both the negligence-of the defendant and ordinary care on the part of the deceased; for whatever may be our opinion on that subject, we must hold, in accordance with long and well established practice, that the complaint is sufficient.

By the Court — The order of the circuit court overruling the demurrer is affirmed.