Fitts v. Waldeck

8 N.W. 363, 51 Wis. 567, 1881 Wisc. LEXIS 87

• Court: Wisconsin Supreme Court
• Decided: March 24, 1881
• Status: Published

Opinion

Lyon, J.

1. The fact that the negligence and want of skill of the defendant’s engineer, Kroeger, caused the death of Schantin, the plaintiff’s intestate, is alleged in the complaint in very general terms. The precise act or omission which caused the boiler to explode is not stated. Yet it is very probable that the plaintiff has only general knowledge or information on the subject, and that he has made the averment in that behalf as specific as he could in a complaint verified by himself. Rut, however that may be, we think the averment that the engineer so recklessly, negligently and unskilfully managed the engine and boilers that one of the boilers exploded, and the intestate was thereby killed, is sufficient on demurrer. If the plaintiff has any more specific information on the subject, perhaps he might be required, on motion, to make his complaint in that respect more definite and certain.

2. It is affirmatively alleged in the complaint that Schantin came to his death without fault or negligence on his part. We find nothing in the complaint from which it can be inferred that he knew of the unfitness of Kroeger to manage the engine and boilers, or that he was guilty of any negligence which contributed to his death. The claim that the averment of knowledge of Froeger’s unfitness by defendants, their agents and servants, is equivalent to an averment that Schantin had such knowledge, because he was one of those servants, is clearly unfounded. This disposes of all the objections urged against the complaint. We think it states a cause of action.

By the Court.— Order affirmed.