Lessard v. Northern Pacific Railroad

51 N.W. 321, 81 Wis. 189, 1892 Wisc. LEXIS 28

Opinion

Winslow, J.

The demurrer was properly overruled. The complaint charges that the defendant itself caused and per mitted the freight car to be upon the main track. Of course, this negligence must have been the act of some agent of the company. The general and familiar rule is that it is sufficient, in pleading an act performed by means of an agent, to plead it as the act of the principal. Is this rule changed by the fact that in this case there is a class of agents, i. e., co-employees, for whose acts of negligence the principalis not liable? We think not. The fair import of the' complaint is that the act charged was the act of an agent whose negligence is the negligence of his principal; in other words, a vice-principal. We certainly shall not assume that the negligent act complained of was the act of one whose negligence is not imputable in this action to the principal, when the complaint directly charges the negligence to be that of the principal.

By the Gourt.— Order affirmed.