Schneider v. Wisconsin Central Co.

The defendant expressly disclaims any error by reason of the refusal to strike out a portion of the complaint as irrelevant. The defendant, in a case like this, undoubtedly has the right to be fairly advised of the facts constituting the plaintiff’s cause of action. This ordinarily calls for specific allegations of fact, unless from the nature of the case the plaintiff cannot make them so. Young v. Lynch, 66 Wis. 514; Palmer v. Hawes, 73 Wis. 50. But here the complaint does fairly advise the defendant of the facts constituting the cause of action, within the repeated decisions of this court. Lake v. Loysen, 66 Wis. 424; Carey v. C. & N. W. R. Co. 67 Wis. 608; Brunswick-Balke-Collender Co. v. Rees, 69 Wis. 453; Cheney v. C., M. & N. R. Co. 75 Wis. 223. The intestate was killed by the defend*359ant’s locomotive at tbe crossing particularly specified. It occurred in tbe day-time. Tbe defendant, by its agents and employees, was necessarily present at tbe time and witnessed tbe accident. Death closed tbe moutb of tbe intestate. ünder tbe circumstances, tbe complaint of tbe administrator is sufficiently definite and certain. Burnham v. Milwaukee, 69 Wis. 384.

By the Cowrt.— Tbe order of tbe circuit court is affirmed.