Goldstein v. Chicago, Milwaukee & St. Paul Railway Co.

46 Wis. 404

Opinion

Lyon, J.

The only question which we find it necessary to determine on this appeal is, Does the complaint show on its face that the plaintiff was guilty of negligence which contributed proximately to the injuries of which he complains? If it does, no cause of action is stated therein, and the demurrer was properly sustained.

If a person places himself or his property in a position of known danger, when he might avoid it, he is guilty of negligence; and although the danger may have been caused by the negligence of another, if the party thus taking the risk of injury is injured thereby, he cannot maintain an action for damages against the other, because his own negligence contributed to the injury.

In the case before us, it appears from the complaint that the plaintiff attempted to drive his horse through or over an unguarded passageway on the brink of the canal, so narrow that there was imminent danger that the animal and the vehicle to which it was attached would be forced into the canal, lie did this voluntarily, and must have known the peril to which he was exposing his property and person. The horse became frightened, and, in the endeavor to avoid the peril into which he was being driven, suddenly bached into the canal. The disaster was the direct result of the plaintiff’s attempt to drive along the narrow unguarded passage. That the plaintiff was guilty of negligence which contributed proximately to cause the injuries of which he complains, seems to us too clear for argument or doubt. True, the complaint states that the plaintiff “ carefully and cautiously turned his horse to the outer or canal side;” but that averment does not negative his negligence. The negligence was not in the manner of driving, but in attempting to drive there at all.

It is said that the question of negligence is for the jury. This is true in a proper case, perhaps in most cases. But if negligence conclusively appear, whether by averment or undisputed evidence, the court must so hold, and a verdict to the contrary will be set aside. Delaney v. Railway Co., 33 Wis., 67; Haas v. Railway Co., 41 id., 44. Erom the facts stated in the complaint in this case, the inference of the plaintiff’s negligence is conclusive.

By the Court. — The order of the county court sustaining the demurrer to the complaint must be affirmed.