Weber v. Naas
| Decision Date | 10 October 1933 |
| Parties | WEBER v. NAAS ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Jefferson County; George Grimm, Circuit Judge.
Action by Elizabeth Weber against Martin Naas and others. From an order overruling their demurrers to the complaint, the defendants appeal.--[By Editorial Staff.]
Order affirmed.
Personal injuries. Action begun August 31, 1932; order entered January 4, 1933. Demurrers to the complaint. From the order overruling the demurrers, the defendants appeal.R. W. Lueck, of Watertown, for appellants.
Francis P. Beggan, of Watertown, for respondent.
The pleader attempted to set out four separate causes of action in a single complaint. In the first cause of action it is alleged that on or about April 23, 1932, the defendants owned and possessed a certain automobile, and on said date, through their agent and servant in that behalf, managed, controlled, propelled, drove, and used said automobile on one of the streets in the city of Watertown; that on said day, plaintiff was walking across Main street in said city, in a northerly direction, on the west crosswalk of said intersection, and was then and there in the exercise of due and ordinary care for her personal safety; that the defendant Martin Naas was driving said automobile in an easterly direction; “that the defendants then and there through their agent in that behalf, carelessly and negligently drove, operated, propelled, controlled and managed their said automobile in an easterly direction along said Main Street by driving the same or causing the same to be driven in such manner as to collide with and strike the plaintiff from the rear injuring her,” and then sets out the nature of the injuries, and alleges damages in the amount of $5,000.
In this cause of action the pleader attempted to state a cause of action against four defendants as owners of the automobile which was then and there being operated by Martin Naas as agent and servant of the owners. On behalf of the defendants, it is urged that this count contains no allegation except a mere general allegation of negligence, does not allege in what respect the driver was negligent or that the negligent conduct of the driver was the cause of plaintiff's injury, and therefore it states no cause of action. The defendant relies upon Moen v. Madison Railways Co., 199 Wis. 168, 225 N. W. 821. What was said in Moen v. Madison Railways Co. must be considered with reference to the factual situation there presented. In that case the plaintiff brought an action to recover damages against the defendant railway company on the ground that the motorman failed to stop the street car immediately on the truck's approach and proceeded to a street intersection in violation of a city ordinance which required the motorman under such circumstances immediately to stop his car and keep it standing until the apparatus had passed. While it was alleged that the driver of the fire truck gave continuous, repeated, adequate, and proper warning of the approach of the fire truck, there was no allegation that the motorman was in any way made aware of the fire truck in the street. It was held that the allegations of adequate and proper warning were to be construed as a statement that the motorman either heard or by the exercise of due care would have heard the warning, were conclusions rather than facts; that in the absence of knowledge of the approach of the fire truck, or of facts from which knowledge should be presumed, the motorman had no duty to perform, and the demurrer was sustained.
[1][2][3] No analogous situation appears from the allegations of the complaint in this case. The allegation is that the automobile was then driven carelessly and negligently, and so operated, propelled, controlled, and managed as to strike the plaintiff while she was in the exercise of ordinary care in crossing the street in the city of Watertown. As has been said, the rules with respect to the sufficiency of the allegations of a complaint as against a demurrer are easy to state but difficult to apply. In pleading negligence and in setting forth the facts which are alleged to constitute negligence, the general rule is that only ultimate facts are to be pleaded, and it is not good pleading to plead matters of evidence. 6 Thomp. Neg. par. 7447, and cases cited. If the pleading fairly informs the opposite party of what he is called upon to meet by alleging the specific acts which resulted in injury to the plaintiff, and there is included a general statement that the defendant negligently performed the acts complained of, the pleading is sufficient. The remedy for...
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