It is clear from the most visual inspection of the complaint that it does not state a cause of tuition. No act of negligence on part of defendant is allege^,*--®' is alleged that the car which struck the plaintiff was running at the rate of six miles an hour; also that plaintiff heard no bell rung on the car; but there is no allegation that six miles an hour was an improper or unlawful rate of speed, or that no bell was in fact rung.
Counsel for defendant ask us to further hold that the complaint is insufficient because it affirmatively appears that plaintiff himself was guilty of contributory negligence. We cannot so hold. Contributory negligence is a matter of defense. ' Hence the question is not whether plaintiff has sufficiently negatived his own negligence, hut whether it conclusively appears, as a matter of law, from the facts stated in his complaint, that he was guilty of contributory negligence. While the admissions in the complaint may point very ■strongly to negligence on part of the plaintiff, yet we do not think they come up to the required test. The question may become a question of law after the evidence is all in, but it is not such on the pleadings.
Order affirmed.
Buck, J., absent, took no part.