74 Wis. 433 | Wis. | 1889
This action is brought by th.e plaintiff to recover damages of the defendant for personal injury while a passenger on one of the open cars of the defendant on its street railway in the city of Milwaukee, caused by a collis
On this appeal, this finding of the plaintiff’s negligence is the only one that is material to be considered, for it is fatal'to the plaintiff’s case, unless it was unsupported by the evidence, which we have seen it was not, but warranted by the facts proved. That such is the law has grown to be elementary. Any negligence of the plaintiff, however slight, that -contributed to the injury complained of, precludes his recovery. Stucke v. M. & M. R. Co. 9 Wis. 202; Milwaukee § C. R. Co. v. Hunter, 11 Wis. 160; Rothe v. M. & St. P. R. Co. 21 Wis. 256; Potter v. C. & N. W. R. Co. 21 Wis. 372; Cunningham v. Lyness, 22 Wis. 245; Pitzner v. Shinnich, 39 Wis. 129; Otis v. Janesville, 47 Wis. 422;
The learned counsel of the appellant contends that, inasmuch as the defendant was guilty of gross negligence that' caused the injury, this principle does not obtain. But neither the facts in evidence nor the finding of the jury made the defendant guilty of gross negligence. It was mere negligence, and not wilful or gross, that the jury found against the defendant. The authorities cited to this point are therefore inapplicable. The court correctly rendered judgment against the plaintiff on the special verdict of the jury.
By the Court.— The judgment of the superior court is affirmed.