Shenners v. West Side Street Railway Co.

LvoN, J. Inasmuch as the determination of the motion to dismiss involves a consideration of the merits of the appeal, the case will first be considered on the merits. I. Both counts allege that the negligence of the driver was the proximate cause of the injury. The second count further alleges that Clybourn street, at the place where the plaintiff was injured, and the car which ran against and injured him, were out of repair, and that the defendant was negligent in allowing them to remain so. But it is not alleged therein, either expressly or by reasonable inference, [449] that such conditions of the street and car contributed to the injuries complained of. The only reason we can perceive for inserting those allegations is to show that, because .the street and car were out of repair, the obligation of reasonable diligence called for greater caution and care on the part of the driver than would have been required had the street and car been in proper repair. Such, we think, was the intention of the pleader. Hence the negligence of the driver is the only negligence alleged as the direct cause of the injury. All the material allegations in both counts can properly be proved under either count, because they are all pertinent to the question whether the driver was negligent. It was sufficient to allege such negligence generally, as in the first count, and it will be competent for the plaintiff to prove, •under such general allegation, that the street and car were out of repair. The two counts are, therefore, substantially alike. This is bad pleading, under all the cases on the subject, particularly Muzzy v. Ledlie, 23 Wis. 445. Had the circuit court ordered the plaintiff to elect on which count he would rely at the trial, this court would not disturb the order. Such is the rule of Muzzy v. Ledlie, and other cases in this court. But it does not necessarily follow that because the complaint is thus defective in form the order refusing to put the plaintiff to his election must necessarity be reversed. To work a reversal the error must have prejudiced the defendant. Ve cannot see how the defendant could possibly be prejudiced by the refusal to require the plaintiff thus to elect. It could not affect the rights of either party were one of the counts stricken from the complaint. All testimony admissible under the complaint in its present form would still be admissible. Moreover, the presence of both counts does not render the complaint contradictory or ambiguous, or tend in any manner to mislead or confuse the [450] defendant in its preparation for trial. It is the same as though the second count were a literal copy of the first, in which case its retention in the pleading could mislead or harm no one. Hence, were the order appealable, it could not properly be reversed, although erroneous. II. Is the order appealable? It is not, unless it involves the merits of the action, or some part thereof. R. S. sec. 3069, subd. 4. Holding, as we do, that the striking out of one of the counts would not operate to limit or change the proofs on the trial, and that the retaining of both counts would not render the complaint contradictory or ambiguous, or tend to mislead or confuse the defendant in the defense of the action, it follows that the order in question does not involve the merits of the action, and hence is not appealable. The motion to dismiss the appeal must there fore be granted. By the Court.— Appeal dismissed.