
    CHARLES W. THOMPSON v. GREAT NORTHERN RAILWAY COMPANY.
    
    November 24, 1897.
    Nos. 10,780—(163).
    Railway — Injury to Employee — Pleading—Freedom from Negligence.
    In an action to recover damages for personal injuries received by reason of tbe negligence of the defendant, the plaintiff need not allege that the injury of which he complains was occasioned without his fault, or that he was not guilty of contributory negligence. Assumption of risk is a species or branch of contributory negligence, and the burden of establishing it rests upon the defense.
    Appeal by defendant from an order of the district court for Kandiyohi county, Powers, J., overruling a demurrer to the complaint.
    Affirmed.
    
      Wm. It. Begg, for appellant.
    
      F. D. Larrabee, for respondent.
    
      
       Reported in 72 N. W. 962.
    
   BUCK, J.

This action is brought to recover damages for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant as a freight train conductor, and to the complaint the defendant interposed a demurrer upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant appealed.

The complaint, in substance, alleges that the defendant negligently furnished to plaintiff a car with a defective ladder thereon, which it knew, or in the exercise of ordinary care it ought to have known, was defective; that by reason of such negligence of the defendant the plaintiff received the injuries complained of; and that the respondent was without fault or negligence on his part.

The specific ground upon which defendant rests its demurrer is that the complaint does not allege that the plaintiff did not himself know, or in the exercise of ordinary care would not himself have known, of the defect complained of, and does not allege any facts to excuse his failure to know of the defect, and that such allegations are necessary. The objections are not well taken. Contributory negligence is a matter of defense. Lydecker v. St. Paul, 61 Minn. 414, 63 N. W. 1027. And the authorities are well-nigh unanimous that in an action for negligence the plaintiff need not allege that the injury of which he complained was occasioned without his fault, or that he was not guilty of contributory negligence. 5 Enc. Pl. & Prac. 1.

The complaint goes much further than the law requires, for it alleges that the injuries were received without any fault or negligence on his part, which is a sufficient averment that he did not contribute to the commission of the injury. Now, the plaintiff’s assumption of risk is but a species or branch of the doctrine of contributory negligence, and hence the burden of establishing it rests upon the defense.

Order affirmed.

CANTY, J.

I concur, except as to the last proposition, regarding assumption of risk. It is not necessary to consider the question in this case.  