Achtenhagen v. City of Watertown , 18 Wis. 331 ( 1864 )

By the Court,

Dixoít, C. J.

Adhering to the rule given in Milwaukee & Chicago R. R. Co. v. Hunter, 11 Wis., 160, that the plaintiff in an action .for injury sustained by the negligence of another, is not bound in the first instance to show that he bimself was not guilty of negligence which contributed to the injury, but that it is enough if the proof introduced, and the circumstances attending the injury, establish prima facie that the injury was occasioned by the negligence of the defendant, still we think the nonsuit properly granted in this case. If the plaintiff’s own evidence raises an inference of negligence against himself, then he is undoubtedly required to go farther, and, in o^der to establish a prima facie case, to show thatjhe was guilty of no negligence. Such, in our opinion, was the case here. The deceased was a person of sufficient discretion, knowing the danger, with ordinary care, to have avoided it, and if he did not, but came to his death in the manner supposed, it cannot but in some degree be attributed to his own want of proper care. He was a boy of the age of thirteen years. He was familiar with the bridge, and knew of the hole in it through which it is supposed he must have fallen and lost his life. He was passing over it in the day time, and had passed over it but a short time before on the same day. These cir-' cumstanees raise such a presumption of negligence against him, that we think the plaintiff was bound, by proper proof, to negative the presumption, and to show that the deceased was guilty of no want of care, before the cause could have been submitted to the jury.

Judgment affirmed.