McQuade v. Chicago & Northwestern Railway Co.

Taylob, J. It has been held by this court that although the contributory negligence of the plaintiff is an affirmative defense to be made out by the defendant on the trial, such defense is admissible under a general denial, and that this is especially true when the complaint alleges that the injury happened to the plaintiff without any negligence or fault on his part. Jones v. S. & F. du L. R. Co. 42 Wis. 306, 310; Cunningham v. Lyness, 22 Wis. 245, 250; Potter v. C. & N. W. R. Co. 20 Wis. 533. Under these authorities, the answer, setting out affirmatively that the plaintiff’s negligence was the cause of or contributed to his injury, was wholly unnecessary after pleading a general denial of all the facts stated in the complaint. If, therefore, the defendant insists upon keeping it on the record as a defense to the action, there would seem to be no reason why the ordinary rules regarding pleadings should not be applied to it by the court; and, under the decision made in Young v. Lynch, 66 Wis. 514, 519, it would seem the court might well direct that it should be made more definite and certain, unless the motion is met by proof that the defendant is unable to make it more definite and certain in the respect mentioned in the motion. But, whether the court was right or wrong in making the order, we are unable to see how the defendant is prejudiced, by it. If he does not comply with the order it is stricken from the record, and the defendant has still all the rights upon the trial, under his general denial, that he would have with his special answer remaining on the record. The defendant not showing himself prejudiced in any way by the order appealed from, this court will not reverse the order. Brachman v. Kuehnmuench, 64 Wis. 249. Appeals from orders which do not prejudice therig'htsof the appellant are not to be encouraged. The order in this [619] case does not involve the merits of the action or any part thereof, nor does it come within any of the other provisions of-the statute giving appeals from orders under sec. 3069, R. S. By the Court.— The appeal is dismissed.