The answer of the appellant does not admit that the respondent’s intestate was on board of the lost steamboat; but admits that, if on board, he was lost. It avers that all the passengers on board were urged by the officers to take the small boats ; and that some of them refused to do so, recklessly staying on the sinking vessel, and being thereby lost. And it avers that the intestate, if on board and lost, was so lost by his own carelessness and recklessness in refusing to enter the small boats, and remaining on board the sinking vessel.
If these averments be true, the intestate’s own gross and proximate negligence contributed directly to his death, and the respondent cannot recover. Potter v. C. & N. W. R'y Co., 21 Wis., 372; Cunningham v. Lyness, 22 id., 245.
If “ all the passengers who entered the small boats were saved and ultimately reached the land,” the fact must probably appear by the first witness called by the respondent to prove her case. It appears to be part of the res gestee, inseparable from the calamity, probably bears on the question of negligence, and ought not to be excluded on the trial, if it could be. It therefore seems to me immaterial to either side whether it be pleaded or not. The order striking the averment from the answer, therefore, affects no substantial right, and in no degree involves *574the merits of the action, and is not appealable. And the appeal must be dismissed. Orton v. Noonan, 30 Wis., 609.
By the Court. — Appeal dismissed.