
    HARDY v. CHICAGO, ST. P., M. & O. RY. CO.
    (Circuit Court, D. Minnesota, Third Division.
    August 18, 1909.)
    1. Courts (§ 347
      
      ) — Federal Courts — Adoption of Practice of State Courts.
    While the burden of proving contributory negligence is on the defendant in the federal courts, the question as to whether he must plead it specially or not depends on the practice of the state in which the court is sitting.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. § 921; Dec. Dig. § 347.*]
    2. Courts (§ 347) — Federal Courts — Adoption of Practice of State Courts.
    Under the practice in the state courts in Minnesota, contributory negligence may be proved under a general denial; and in a federal court in that state a general allegation of contributory negligence in the answer is sufficient.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §-921; Dec. Dig. § 347.*]
    At Law. On motion to require defendant to make the answer more definite and certain.
    Durment & Moore, for plaintiff.
    James B. Sheean, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, '& Rep'r Indexes
    
   WILLARD, District Judge.

In an action to recover damages for personal injuries caused by the alleged negligence of the defendant; the latter in its answer admitted certain facts alleged in the complaint, denied generally the other matters contained therein, and alleged “that the injuries sustained by the plaintiff were caused by his own negligence and want of ordinary care.'” The plaintiff has now moved that the defendant be required to make more definite and certain the allegation in the answer relating to contributory negligence.

While the burden of proving contributory negligence is in the national courts on the defendant, the question as to whether he must plead it specially or not depends upon the practice of the state in which the court is sitting. Canadian Pacific Ry. Co. v. Clark, 20 C. C. A. 447, 73 Fed. 76, 74 Fed. 362. In the state courts of Minnesota, contributory negligence can be shown under a general denial. St. Anthony Falls W. P. Co. v. Eastman, 20 Minn. 277 (Gil. 249); Hocum v. Weitherick, 22 Minn. 152; O’Malley v. St. Paul, Minneapolis & Manitoba Ry. Co., 43 Minn. 289, 45 N. W. 440.

The motion is denied.  