Kelly v. Chicago & Northwestern Railway Co.
Wisconsin Supreme Court
APPEAL from the Circuit Court for Fond du Lao County. The case is thus stated by Mr. Justice Cassoday: “ The plaintiff Anna, with two of the children of the plaintiffs, took passage on one of the defendant’s passenger trains at the city of Eond du Lac for Yan Dyne station, in the town of Friendship, Fond du Lac county, August 23, 1882. On reaching the station, and after the train had stopped, and while Anna, with the two children, was attempting with all possible diligence…
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APPEAL from the Circuit Court for Fond du Lao County. The case is thus stated by Mr. Justice Cassoday: “ The plaintiff Anna, with two of the children of the plaintiffs, took passage on one of the defendant’s passenger trains at the city of Eond du Lac for Yan Dyne station, in the town of Friendship, Fond du Lac county, August 23, 1882. On reaching the station, and after the train had stopped, and while Anna, with the two children, was attempting with all possible diligence and care to get off the train, as is alleged, the same was suddenly started, by and through the carelessness and…
1Opinion of the CourtCassoday, J.
In an action for negligence, if the plaintiff1 can prove his case without disclosing his own contributory-negligence, then such contributory negligence is purely a matter of defense to be proved by the defendant. Randall v. N. W. Tel. Co., 54 Wis., 147; Hoth v. Peters, 55 Wis., 405, and cases there cited. The same rule prevails in the supreme court of the United States and many of the states. See cases cited in Abbott’s Trial Ev., 595. The burden of' proving- such contributory negligence being ordinarily upon the defendant, there would seem to be no objection to his affirmatively alleging a…
2Cases cited5 opinions
- Randall v. Northwestern Telegraph Co.Wisconsin Supreme Court · 1882
- Heishon v. . Knickerbocker Life Insurance Co.New York Court of Appeals · 1879
- Hoth v. PetersWisconsin Supreme Court · 1882
- Stuart v. AllenWisconsin Supreme Court · 1878
- Blossom v. LudingtonWisconsin Supreme Court · 1873
3Cited by21 opinions
- United States v. Microsoft Corp.Court of Appeals for the D.C. Circuit · 1999
- Whereatt v. EllisWisconsin Supreme Court · 1886
- Hulehan v. Green Bay, Winona & St. Paul RailroadWisconsin Supreme Court · 1887
- State v. Chicago & Northwestern Railway Co.Wisconsin Supreme Court · 1907
- State Ex Rel. Westerheide v. ShillingSupreme Court of Oklahoma · 1942
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