
    Glass, by next friend, v. The William Heffron Company.
    
      Answer denying allegations in petition — And that defendant was negligent — And averring that plaintiff was at fault — Does not raise issue of contributory negligence — Evidence of negligence by both sides — Question of proximate cause — Instructions to the jury.
    
    1. An answer which sets up, first, a general denial of the allegations in the petition, and, second, a denial that the defendant was negligent* followed by an averment that it was by the plaintiff’s own fault and negligence that he was injured, does not raise the issue of contributory negligence; but it is more than a denial that the plaintiff was without fault. It is an averment that the plaintiff's own negligence was the sole cause of his injury.
    2. But in such case, where there is evidence submitted to the jury which fairly tends to prove that the defendant was guilty of negligence and also that the plaintiff was negligent, it is proper for the court to instruct the jury that if they should find that the defendant was negligent and that such negligence was the proximate cause of the injury, and if they should further find that the plaintiff was guilty of some negligence the jury should then determine whether the plaintiff’s negligence was such as, combined with the negligence of defendant, contributed proximately to the injury complained of; and it is neither prejudicial to the defendant, nor erroneous, to instruct the jury that, “the burden of proving contributory negligence of the plaintiff is upon the defendant.”
    No. 12318
    Decided April 2, 1912.
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error sued to recover damages for a personal injury. The answer of the defendant consisted, first, of admissions that it was engaged in the business mentioned in the petition and that the plaintiff was employed by it for a certain purpose, and a denial of each and every other allegation in the petition contained and not therein admitted to be true; and, second, as follows : “Defendant further says that if the plaintiff was injured while in its employ it was not by any fault or negligence or any order of the defendant and that it was by plaintiff’s own fault and negligence in that the plaintiff carelessly and negligently and of his own volition placed his hand in such position with reference to the machinery operated by the defendant that his said hand was caught in such machine.”
    A trial of the action resulted in a verdict and judgment for the plaintiff, which judgment was reversed by the circuit court upon the ground that the court of common pleas erred in charging that “the burden of proving contributory negligence of the plaintiff below rested upon the defendant below;” and this proceeding is to reverse the judgment of the circuit court and affirm that of the common pleas.
    
      Messrs. Kinkead, Rogers & Ellis; Mr. Wade H. Ellis; Mr. Challen B. Ellis and Messrs. Cogan & Williams, for plaintiff in error.
    The allegation in the answer that the plaintiff was injured “by his own fault and negligence” is one that has frequently been used in setting up contributory negligence as a defense. Examples of such an answer, treated as a defense of contributory negligence without question, are found in the following cases: Van Duzen, etc., Engine Co. v. Schlies, 61 Ohio St., 298; Railway Co. v. Lynch, 69 Ohio St., 123; Railway Co. v. Murphy, 
      50 Ohio St., 135; Rolling Mill Co. v. Corrigan, 46 Ohio St., 283.
    While it is true that when contributory negligence is neither alleged in the answer nor brought out in the defendant’s testimony the issue is not in the case and it is improper to charge on the subject, our contention is that it is not improper to charge on the subject when the answer is treated as setting up contributory negligence and the case is tried and testimony introduced on the theory that such issue is in the case. Railway Co. v. Frye, 80 Ohio St., 289.
    If the defendant in the case at bar had filed merely a general denial, but had presented the same evidence, raising the issue of contributory negligence by the evidence, it still would have been proper for the trial court to charge on the subject. It is well settled that when a party by his own evidence makes an issue it is proper for the court to submit that issue to the jury. Speer v. Bishop, 24 Ohio St., 602; Banta v. Martin, 38 Ohio St., 534; Benninger v. Hess, 41 Ohio St., 69; Brockway v. Jewell, 52 Ohio St., 187.
    We do not believe, considering plaintiff’s testimony, that the charge as to presumption of contributory negligence raised by plaintiff’s own testimony would have been proper, but even if it would have been proper the omission to give it was not error as no such charge was requested. Railway Co. v. Ritter, 67 Ohio St., 53; Schryver v. Hawkes, 22 Ohio St., 309; Smith v. Railway Co., 23 Ohio St., 10; State v. Schiller, 70 Ohio St, 1.
    
      
      Messrs. Littleford; Frost & Foster, for defendant in error.
    There being no issue of contributory negligence made by either the pleadings or evidence of the plaintiff or the defendant, it was error for the court to charge that “the burden of proving the negligence of the defendant is upon the plaintiff, and the burden of proving contributory negligence of the plaintiff is upon the defendant.” Traction Co. v. Forrest, 73 Ohio St., 1; Traction Co v. Stephens, 75 Ohio St., 171; List & Son Co. v. Chase, 80 Ohio St., 42.
    The master is not responsible as to matters beyond the scope of authority of a superior servant. The well known principle of law upon which this assertion is based is stated in the following authorities: 2 Labatt on Master and Servant, Sec. 537; Bradley v. Nash. C. & St. L. Ry. Co., 14 Lea (Tenn.), 374; Fisk v. Cent. Pac. Rd. Co., 72 Cal., 38, 13 Pac. Rep., 144; Nash. & Chattanooga Rd. Co. v. McDaniel, 12 Lea (Tenn.), 386; McGowan v. St. L. & I. M. Ry. Co., 61 Mo., 528; 2 Bailey’s Personal Injuries, 1194; O’Neil v. Great Northern Ry. Co., 51 L. R. A., 585.
    The court failed to properly state the issues to the jury. B. & O. Rd. Co. v. Lockwood, 72 Ohio St., 586.
   Davis, C. J. .

The circuit court reversed the judgment of the court of common pleas, upon the ground that the court of common pleas erred in charging the jury that the burden of proving contributory negligence of the plaintiff rested upon the defendant; and it expressly found that there were no other errors apparent upon the record. It is argued that in the pleadings there is no issue of contributory negligence, and that, therefore, such instruction was uncalled for, erroneous and prejudicial to the defendant.

The rule as to the burden of proof was stated correctly; and if there was any phase of the case, either upon the pleadings or the evidence, in which contributory negligence of the plaintiff might become important, it was not erroneous, and could not be prejudicial to the defendant, to charge the law correctly upon that subject.

The defendant may set forth in his answer as many defenses as he may have, provided that they are so far consistent that they may be verified by oath without swearing falsely. In this case, the defendant for its first defense denied wholly the plaintiff’s cause of action; and for its second defense denied that it was negligent and averred that plaintiff’s injury occurred by his own fault and negligence. In this respect there is a strongly marked distinction between the case at bar and the cases cited by the defendant, Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1, and Cincinnati Traction Co. v. Stephens, 75 Ohio St., 171. In each of those cases the only defense was a general denial.

It is true, however, that the second defense in this answer does not raise the issue of contributory negligence. In substance it avers that the plaintiff’s injury resulted solely from his own carelessness. But it must not be forgotten that there were two sharply defined issues in the pleadings, upon the plaintiffs allegation that the defendant was negligent and upon the defendant’s averment that the plaintiff was the sole author of his own injury. The record discloses testimony tending to support the affirmative of both of these issues. Hence, the learned trial court, in submitting the case to the jury, very properly reminded them, that if they found that the defendant was not guilty of the negligence charged, they need go no further than to return a verdict for the defendant.

But in that connection it was necessary to consider another possibility. Therefore the court instructed the jury, that if they should find from the evidence that the defendant was negligent and that such negligence was the proximate cause of the injury; and if they should also find from the evidence that the plaintiff was negligent, then it would be necessary to determine whether the plaintiff was guilty of such negligence as, combined with the negligence of the defendant, contributed proximately to the injury complained of. We think that this was proper, inasmuch as evidence was before the jury tending to show negligence on the part of the plaintiff; and if the jury should find from the evidence that both the plaintiff and the defendant were negligent, the defendant’s liability would necessarily depend on the question whether the plaintiff’s negligence combined with that of the defendant and contributed directly to the injury. Then it naturally and necessarily followed that the court should say to the jury that, “the burden of proving contributory negligence of the plaintiff is upon the defendant/’ We áre of the opinion that there was no error in this, prejudicial to the defendant, for which the judgment against the defendant should have been reversed.

The judgment of the circuit court is reversed and that of the common pleas is affirmed.

Spear, Shauck, Johnson and Donahue, JJ., concur.  