Rolseth v. Smith

• Decision Date: 16 December 1887
• Citation: 35 N.W. 565,38 Minn. 14
• Parties: ROLSETH v SMITH AND ANOTHER.
• Court: Minnesota Supreme Court

38 Minn. 14

35 N.W. 565

ROLSETHvSMITH AND ANOTHER.

Supreme Court of Minnesota.

December 16, 1887.

(Syllabus by the Court.)

An allegation of negligence, as applied to the conduct of a party, is not a mere conclusion of law, but a statement of an ultimate pleadable fact. Hence, in an action for damages resulting from certain acts of another, alleged to have been negligent and careless, the complaint is not demurrable as not stating a cause of action, unless the particular acts alleged are such that they could not be negligent under any possible evidence admissible under the allegations of the complaint.¹

Neither could a court say, as a matter of law, that it appeared from the allegations of the complaint that the defendant was guilty of contributory negligence, or had voluntarily assumed, as incident to his employment, the risks which caused the injury, unless these allegations so clearly show that fact that there could be no room for different minds reasonably arriving at any different conclusion, upon any possible evidence admissible under and consistent with the allegations of the pleading.

Appeal from district court, Hennepin county; LOCHREN, Judge.

Jelley & Hay, for appellant.

C. H. Benton, for respondents.

MITCHELL, J.

This action is brought to recover damages resulting from the alleged negligence of defendants, causing injuries to the plaintiff while in their employment in their saw-mill. The appeal is from an order sustaining a demurrer to the complaint, on the ground that it does not state a cause of action. The defendants' contention is that the complaint is insufficient (1) because it does not allege anything that amounts to negligence on part of defendants; and (2) that it affirmatively appears that plaintiff himself was guilty of contributory negligence, or, at least, voluntarily assumed, as incident to his employment, all the risks of which he now complains.

The complaint, although very ingeniously framed, is in some respects so conspicuous for what it omits to allege, as well as for what it does allege, as to be suggestive of possible difficulty in establishing a cause of action by the evidence; yet we are of opinion that upon its face it is good. The question of negligence is one of mingled law and fact; and hence an allegation of negligence or carelessness, as applied to the conduct of a party, is not a mere conclusion of law, but a statement of an ultimate fact allowed to be pleaded. Clark v. Railway Co., 28 Minn. 69,9 N. W. Rep. 75. The complaint in this case states various things which it...