#### Cunningham and wife vs. Lyness.

*Injuries from defendants negligence: what negligence of plaintiff defeats the action.*— Pleading.

1. There can he no recovery for injuries to the person from defendant’s negligence, if plaintiff was guilty of negligence (though it. was slight and that of defendant gross), which contributed directly to the injury.

2. Plaintiff was crowded fro'in the dock into the water through defendant’s negligence in driving a team from, a ferry-boat on to the dock; but there was evidence tending to show negligence on her part in standing upon the edge of the dock. *Reid,*that her having assumed that position some time *before*the accident did not render her negligence *remote.*

3. An averment in the answer *[in addition to a general*denial) of various causes as contributing to the injury, without allegation of negligence on plaintiff’s part, does not preclude defendant from relying at the trial on proof of plaintiff’s negligence.

*246APPEAL from the Circuit Court for *Winnebago*County.

Action to recover damages for injuries to the plaintiff from being forced from a pier into the Eox river at the city of Oshkosh,- in consequence, as is averred, of defendant’s negligence while driving a wagon from the ferry-boat on to the pier. Answer, a general denial, with notice that defendant would show that the injury was caused by the negligence of one Coughran, the improper construction of the pier, and the improper management of the ferry-boat. — The facts proven and the instructions given and refused by the court, will sufficiently appear from the opinion. Verdict for the plaintiff; new trial denied; and judgment on the verdict; from which the defendant appealed.

*Gabe Bouck*and *G. A. Weisbrod,*for appellant,

to the point that plaintiff, if guilty of negligence, could not recover, cited 1 Hilliard on Torts, 140; *Wilds v. Hudson B. B. Co.,*24 N. Y., 430; *Welling v. Judge,*40 Barb., 193; *Brooks v. B. B. Co.,*25 Barb., 600; *Mangamv. B. B. Co.,*36 id., 230; *Bie-seigelv. N. Y. Cent.,*33 id., 429; *Dasconib v. B. B. Co.,*27 id., 222; *Hartjield v. Boper,*21 Wend., 615; *Hunger v. B. B. Co.,*4 Corns., 349;. *Bush v. Brainard,*1 Cow., 78; *Tona-wanda B. B. Co. v. Hunger,*5 Denio, 255; *Birge v. Gardiner,*19 Conn., 50; *Neal v. Gillett;*23 id., 437; *Fox v. Glastenbury,*29 id., 208 ; *Chamberlain v: Hil. Hiss. B. B. Co.,*7 Wis., 425; *Dressier v. Davis,*id., 527.

*Jackson $ Halsy,*for respondents,

contended that negligence on the part of *Hrs. Cunningham*had neither been pleaded nor proven; and that the jury were properly instructed. 9 Wis., 202; 24Vt.,487'; 8 Wend., 469; 10 M. &. W., 545; 3 id., 244; 5 W., H. & Gk, 243; 1 Crompt. & M., 20; 11 East, 60; 14 Conn., 1; 1 Smith’s L. C., 312.

Cold, J.

On the trial, the court was requested on behalf of the defendant to instruct the jury, that if they should find *247from tRe evidence that tRe defendant did not use tRe ordinary care and diligence, still if tRey found tRat tRe plaintiff, *Mrs. Cunningham,*in occupying-tRe position sRe did upon tRe wharf, was guilty of negligence, and tRat sucR negligence on Rer part essentially contributed to tRe injury, tRen tRey must find for tRe defendant. TRis instruction tRe court refused to give, and to tRe refusal an exception was taken. It seems to us tRat tRe instruction was correct in terms as asked, and was strictly pertinent to tRe issue in tRe case.

It appears from tRe evidence that *Mrs. Cunningham*was standing, at tRe time of tRe accident, on tRe dock or landing of tRe public ferry-boat at tRe city of OsRkosR, wRen sRe was tRrown off or forced from tRe landing into Eox river, and injured. It is alleged in tRe-complaint, that tRe defendant caused tRe injury by negligently and unlawfully driving Ris team and Reavy double-wagon off tRe ferry-boat in sucR a manner as to strike against tRe dray of one CougRran— wRo was driving Ris Rorse and dray off from tRe ferry-boat at tRe same time — and to force and throw tRe dray and Rorse thereto attached against *Mrs. Cunningham,*thereby crowding or forcing Rer into the river. It seems that the ferryboat could not approach to the shore on account of the shallowness of the water at that point, and a dock or approach was made from the shore for a landing. On the upper side of this dock there was no railing or other protection; on the lower side there was a warehouse and wharf immediately joining which was elevated about a foot above the dock. *Mrs. Cunningham*was standing on the upper side of the dock, at the water’s edge, waiting to get on the ferry-boat, when she was crowded or forced into the river. It was claimed that she Rad taken an exposed position on the dock, and that thus, by occupying the position she. did, she was guilty of negligence which essentially contributed to the injury. ■ If this were so — and it is not impossible that a *248jury might have so found, when considering all the evidence hearing upon that point — then we suppose no recovery could he had. Of course, we express no opinion upon the weight of that evidence; all that we wish to be understood as saying is, that there was sufficient testimony in the case to submit the question to the jury whether *Mrs. Cunningham*was guilty of negligence in occupying the position she did upon the dock, which contributed to the unfortunate result. If she suffered an injury attributable in some measure to a want of requisite care on her part, then no, recovery can be had, although the defendant did not exercise ordinary diligence in' the management of his team, and in driving off from the boat. In the case of *Potter, Adm’r, etc., v. The Chicago & Northwestern R. R. Co.,*21 Wis., 372, which was an action brought against the company for negligently causing the death of a child about ten years old, while getting off the cars at a station, this court held it to be error on the part of the circuit court, to charge the jury that if they should find that the deceased, or her mother (who had the child in charge), was guilty of *slight*negligence only in getting off the cars, and the defendant company was guilty of *gross*negligence, a recovery could be had in the action. Mr. Justice DowneR says, in the opinion in that case, that *“*negligence proximate or contributing' to the injury, however slight, prevents a recovery.” Substantially the same principle had been previously decided by this court in other cases, that a party cannot “ recover for an injury of which his own negligence was in whole, or in part, the proximate cause.” *Rothe v. Mil.*& *St. Paul R. R. Co.,*21 Wis., 256; *Chicago & Northwestern R. R. Co., v. Goss,*17 id., 428; *Spencer v. The Mil. & Prairie du Chien R. R. Co.,*id., 488; *Achtenhagen v. The City of Watertown,*18 id., 331; *Bennett v. The Chicago & Northwestern R. R. Co.,*19 id., 145; *Langhoff v. The Mil. & Prairie du Chien R. R. Co.,*id., 489; *Stucke v. The Mil. & Miss. R. R. Co.,*9 id., 200.

*249Erorn some otter instructions given to the jury in tliis case, we conclude tlaat there must have been a little confusion in the mind of the circuit judge as to what was remote and what proximate negligence, within the meaning of the adjudged *cases;*and a word, therefore, upon that point may be proper. The jury were in efleet told in this case, that if *Mrs. Cunningham,*in occupying the position she did, was guilty of negligence, it was remote, and did not excuse the exercise of reasonable care and prudence on the part of the defendant in driving his team off the boat and over the wharf; for that the rule was, that she must have done some act at the very moment of the happening of the accident, which contributed to the same; that is, that the negligence on her part must have been at the very moment of the accident, or so near to it as to have been one of the immediate and direct causes in producing the injury. Erom these instructions, the jury might well have supposed, that remote and proximate negligence referred solely to the nearness in the order of time in which certain acts were done; in other words, that although *Mrs. Cunningham*was guilty of negligence in occupying the position she did when crowded into the river, yet, as she had taken that position some little time before the accident happened, her negligence was remote, and did not prevent a recovery. Row it is very evident that whether negligence is proximate or remote does not depend alone upon the closeness in the order of time in which certain things are done. Other consequences and other causes must be considered. For illustrationa person lies down upon a railroad track, and goes to *sleep;*and if killed an hour afterwards by a train of cars running over him, we say that his negligence was proximate, not remote, because it directly and naturally contributed to his death. The circumstance that he lay down upon the track an hour or two before he was run over by the cars, does not change the *250character of the negligent act. His lying down npon the track in the first instance, and his remaining there, was a continuing act of negligence. So here, if *Mrs. Cunningham*occupied an exposed position on the dock — one where she would likely be struck and forced into the river by teams passing on and off the ferry-boat — and .if, by remaining in that position, she was guilty of negligence which contributed to the injury, then no recovery can be had, although she might have taken her position some little time before the accident. Hence we think the instructions upon this point were calculated to mislead the jury, because they restricted them to the consideration of the question, whether *Mrs. Cunningham*did some negligent act at the very moment the accident happened, and not whether the negligent act directly and naturally contributed to the injury. In the case of *Chicago & Northwestern R. R. Co. v. Goss,*above cited, the distinction between remote and proximate negligence is clearly pointed out. In that case, as in this, the jury were restricted altogether to the consideration of the question, 'whether the plaintiff’s negligence was proximate or remote in the sense of its having occurred at the time of the alleged injury, leaving the degree of negligence wholly out of the case.

But it is further insisted that the plaintiffs were entitled to recover in the action, because the defense set up in the answer and attempted to be proved, excluded all pretense of negligence on the part of *Mrs. Cunningham.*It is true that it is stated in the answer, by way of notice, that the injury to *Mrs. Cunningham*was produced by other causes; such as the want of care on the part of Coughran; defect in the ferry landing; and carelessness on the part of the employees of the city in the management of the ferry. I But there is likewise the general denial, which put in issue the right of the plaintiff to recover. It was not necessary to *251state in the answer that the injury was caused by the negligence of *Mrs. Cunningham,*or by both her negligence and that of the defendant; since this would merely amount to the general issue. *Potter, Adm’r, etc., v. The Chicago & Northwestern R. R. Co.,*20 Wis., 533. If, therefore, there was'any fact or circumstance which tended to show that the injury arose partly by the negligence of *Mrs. Cunningham,*the defendant was entitled to proper instructions in view of any such evidence. For that fact, if established to the satisfaction of the jury,'would be an answer to the action. So,notwithstanding the unnecessary matter stated in the answer, one of the issues was, whether the plaintiff, *Mrs. Cunningham,*by her carelessness and improper conduct, contributed to the injury or not. "We are, therefore, of the opinion that there must be a new trial.

*By the Court.*— The judgment of the circuit court is reversed, and a new trial ordered.