The learned circuit judge sustained the demurrer on two distinct grounds. He held that it appears affirmatively by tÉe allegations of the complaint (1) that the defendant company owed no duty to the plaintiff in respect to the manner in which it constructed and maintained its railroad at the place where the plaintiff was injured; and (2) that the parents of the plaintiff are chargeable with negligence in that they allowed him to go to such place. If either of these propositions is correct, the demurrer .was properly sustained; otherwise, if neither of them can be upheld.
1. The proposition that the defendant owed no duty to the plaintiff, and hence as to him was not guilty of any negligence, seems to be rested upon the averment in the complaint that many years before the plaintiff was injured the defendant tore up and destroyed the highway, and it was never restored. Hence, it is claimed that the place of injury was not a public highway, and it does not appear that the plaintiff had any right to be there. Under the liberal rules for the construction of pleadings which now prevail, we think this is not a correct interpretation of the language of the complaint. Evidently it was not the intention of the pleader to allege that a public highway no longer existed at the locus m quo, but only that the use of the highway for public travel throughout the extent thereof was interrupted and destroyed by the construction of the railroad across it. The locus in quo remained a public highway after it was so obstructed, as before, and the plaintiff *480or any other person might lawfully go upon it and use it as such. Indeed, it may fairly be inferred from the averment that occupied dwelling-houses stood within a few feet of the place of injury, that the portion of the highway or street east of the railroad was in use as a public way when the plaintiff was injured.
Hence, we conclude that, under the averments of the complaint, the locus in quo was a public highway, upon which any person might lawfully travel, and that the defendant owed the duty to all persons traveling there, including the plaintiff, to make the approaches to its railroad, and the crossing of the street over the same, reasonably safe to such travelers. The complaint sufficiently shows that the defendant failed to perform this duty, but made and left unguarded a deep and very dangerous pit in the highway, into which the plaintiff (who, so far as is made to appear, was lawfully there) fell and was injured. This makes at least a prima facie case of negligence against the defendant.
2. The complaint fails to aver whether the plaintiff was attended or unattended by either of his parents or any other person when injured, or under what circumstances he went to the railroad track and fell into the pit. It is averred, however, that neither the plaintiff nor either of his parents were guilty of any carelessness or negligence contributing to the injuries complained of, and there is no averment of fact in the complaint from which negligence on the part of either can properly be inferred, except the averments that the plaintiff was in a dangerous place and was injured. It is- said that such averment of freedom from negligence is a mere conclusion of law. This might be so were all the facts specially stated. In such case, if the facts showed negligence, then an averment or finding of no negligence would be regarded as an erroneous conclusion of law, and no force or effect would be given to it. This was done in *481Hogan v. C., M. & St. P. R. Co. 59 Wis. 139, which was such a case. But when, as here, the only averment directly affecting the question of negligence is that a person did an act negligently or the opposite, the averment must be regarded as one of fact, and effect given to it accordingly. Applying this rule here, it results that the complaint does not show the plaintiff or either of his parents guilty of any negligence in the premises, but the reverse. The force of the averment of due care or freedom from negligence is not destroyed or weakened by the failure of the pleader to explain why the plaintiff came to be at the place of injury.
The complaint may lack definiteness and certainty of statement, but we must hold that it states facts sufficient to constitute a cause of action.
By the Oourt. — • The order is reversed, with a direction to the circuit court to overrule the demurrer.