
    THE ISSUE OF CONTRIBUTORY NEGLIGENCE — HOW RAISED.
    [Common Pleas Court of Butler County.]
    Jesse Barrackman v. The C., C., C. & St. L. Ry. Co., and C. & D. Ry. Co.
    Decided, October, 1903.
    
      Pleading — Issue of Contributory Negligence Raised by a Defendant— What the Answer Should Aver.
    
    A defendant in this state raises tbe issue of contributory negligence by alleging generally that the plaintiff was guilty of negligence which contributed to his injury, without making a statement of the facts relied upon to show such negligence.
   Belden, J.

This case comes- oil for hearing upon the motion of the plaintiff to require eadh of the defendants to make its answer more definite and certain in this, to-wit:

First'. That it state what acts were done -or omitted to be done by plaintiff which constituted lack of ordinary care on his part.

Second. That it state any and 'all conditions, circumstances and situations, and all acts or omissions to- act -on the part of plaintiff which separately or together constituted want or lack of ordinary care upon the part of said plaintiff and -how the same caused or contributed to the injuries received by plaintiff.

This presents for consideration the question as to the proper manner in which to set forth the plea of contributory negligence.

Is it sufficient to merely state, as is done in this case, that the plaintiff’s injuries were caused by his own lack of ordinary care, or should the acts, conditions and circumstances which constituted such lack of ordinary care be stated ?

The authorities upon this question are in conflict.

The rule is thus stated in 5 Ency. of Plead. & Prac., p. 12:

“In those states where it is incumbent on the defendant to plead contributory negligence specially, and where the defense can not be made under a general denial, the trend of the authorities is that a general averment that the plaintiff was guilty of negligence which contributed to the injury, and that he could have avoided all damage by the exercise of proper care, is not sufficient. The acts and defaults constituting such contributory negligence should be averred.”

In support of this doctrine the editor cites: 15 So. Rep., 511 (Ala.); 100 Ala., 151; 78 Ala., 301; 73 Tex., 2.

Judge Thompson, in his work on Negligence, Section 374, lays down substantially the same rule, and says:

“In conformity with this view, it has been held that an allegation in the 'answer that the plaintiff’s injuries were the result of his own contributory negligence, is too general to admit evidence thereunder. But this; is plainly unsound so far as it relates to evidence of the facts immediately attending the accident; for here, in order to enable the court and the jury to deal justly with the subject, the evidence ought to exhibit' the whole transaction as it actually occurred, and not merely a part of it. But it may be sound in regard to any prior negligence, extrinsic to the facts surrounding the accident, or to any subsequent negligence aggravating the damages. This conclusion is necessary to give full scope and play to the manifestly just and reasonable rule that the plaintiff can not recover where the indisputable evidence shows that he, or the person killed or injured, was guilty of negligence contributing to the misfortune.”

In the case of Railway Co. v. Smith (Court of Appeals of Kentucky), 39 Southwestern Reporter, 832, the first syllabus reads:

“A general allegation that plaintiff was guilty of negligence which contributed to the injury, and but for which it would not have occurred, is a good plea of contributory negligence.”

This case was decided March 19, 1897, and the opinion of Burnam, J., contains an elaborate discussion of the question, and reviews the cases cited in 5 Ency. of Plead. & Prac., p. 12.

Judge Burnaan quotes from. Bliss on Code Pleading, Section 211, as follows:

“To charge fraud, it is not enough to say that the party fraudulently procured or fraudulently did this or that, or committed a fraud. They are but conclusions of law. The facts constituting the fraud must be stated. On the other hand, a general allegation of negligence is allowed. Negligence is the ultimate fact to be pleaded, and is not a legal conclusion, as The defendant did run and manage one of their ears in such a careless, reckless and negligent manner that death was caused.’ The law draws the conclusion in both cases, yet we have seen that negligence possesses more the element of fact than fraud. Negligence is not a term given by law to certain conduct, but forms part of the act from which The injury has arisen. Specific acts constituting negligence can seldom be directly shown, but are presumed from injuries which ordinarily result only from negligence. For instance, the 'driver upsets a coach, and breaks a passenger’s arm. Careful driving will hardly have such a result. The passenger knows that there has been negligence, but he will not be likely to know in what it consisted. So, where a locomotive sets fire to fields and buildings along the' track, the sufferer can not state in what the negligence consists, whether there is a defect in the furnace or carelessness in the management. Some negligence is presumed, and it must, of necessity, be alleged generally. And the same mies apply to- an answer which sets up contributory negligence.”

Further in this opinion the court says:

“The error in this position lies in the assumption that the allegation of negligence is a mere legal conclusion, amid that the supposed substantive facts constitute contributory negligence, neither of which is true. Absence of care in the performance of an act is not merely the result of such absence, but the absence itself; and it is m.ot, therefore, a mere conclusion of law, and may be pleaded generally in an answer, the facts having been specifically set out in the petition.”

In the ease of R. R. Co. v. Smock, 48 Pac. Rep., 681-683, the Supreme Court of Colorado held:

“While the defense of contributory negligence must be established by a preponderance of the evidence, it does not, for this reason, necessarily follow that it must be specially pleaded in the answer. It is sufficient in-this respect if the pleadings, taken together, raise this issue.”

What, then, is encumbent on the defendant' in the state of Ohio in order to raise the issue of contributory negligence?

In the brief filed by counsel for plaintiff they discuss this question and admit that “in an action brought by the servant against the master for personal injuries, a general denial puts in issue the conduct of both parties so far as they are a part of the res gestae; and if it appear in the development of the issue made in regard to the facts that plaintiff was negligent in any way contributing to his injury, he can not recover, and the defendant can avail himself of this defense on the general issue.”

This is in accordance with the law as stated in the case of Coal Company v. Estievenard, 53 O. S., 43, where the court on page 51, say:

“The defense to the action rested principally upon the application of the doctrines of contributory negligence. The plaintiff avers in his petition that' he was without fault or negligence in the premises. This ‘allegation is denied in the answer, and thus issue is fairly joined upon the question of negligence on part of plaintiff below. While the issue, as to plaintiff’s contributory negligence, is thus made up by the averment in the petition and denial in the answer, the course of trial amid proof remained the same as if the answer had averred contributory negligence, and the reply had denied the same.”

So in Ohio contributory negligence can be shown either under a general denial or under an averment that the plaintiff was guilty of want of ordinary care.

As stated, counsel for plaintiff virtually admit this, but say that “if the defendant seeks to avoid liability because of some independent acts of negligence on part of plaintiff not a part of the res gestae, and not concerning his behavior at the time he received the injury, but something operating as an antecedent or collateral and independent fact constituting contributory negligence on part of the plaintiff, the defendant must plead the facts.”

This seems logical, but the court is of the opinion that the question can be raised at the trial when defendant should seek to prove the contributory negligence of the plaintiff.

If the defendant relies upon some independent, collateral, antecedent act of omission or commission am part of the plaintiff which would bar his right to recover, it is questionable whether the court would receive the same, inasmuch as the plaintiff has had no notice that it would be thrust into the case. But as the court understands this allegation of contributory negligence, it refers primarily to acts of omission or commission on part of the plaintiff forming a part of the res gestae.

Plaintiff’s attorneys contend that if the allegation of contributory negligence refers to the circumstances of the accident, it is surplusage and should be stricken out.

This question does not arise on the motion to make more definite and certain; but it is doubtful, in the opinion of the court, whether if should be stricken from the answer, because it does give some notice to the plaintiff that the defendant will rely upon a defense of contributory negligence, and while it might make this defense under a general denial the court can not see that plaintiff is prejudiced by the allegation.

In the case of Railway Co. v. Roos, Adm’r, 9 C. C., 201, it was stated:

“That having denied the manner of the accident as stated by the plaintiff, the defendant had the right, under that denial, to show just how it did happen; that was a part of the res gestae, and in offering this evidence it' would be offering proof as to the very facts in evidence by the plaintiff.”

Now, in the case at bar, plaintiff in his petition alleges that he was without fault, and was not guilty of negligence.

A general denial makes am issue as to that matter.

Suppose this motion to make more certain and definite was granted, and the defendant amended and set forth some circumstances or acts of the plaintiff alleged to constitute contributory negligence, on the trial of the ease would the defendant be confined to giving evidence only of such acts constituting contributory negligence as were set forth in its answer? Manifestly not. For under the general denial which raises the question of the plaintiff’s want of due care, the defendant might introduce evidence of any acts which showed such want of ordinary care. If this position is sound, why compel the defendant to set out the facts which constitute contributory negligence ?

As stated by counsed for defendant, the defendant could satisfy the order by setting out any flimsy act of the plaintiff, and still at the trial be allowed to show any substantial act of contributory negligence on the part of plaintiff under its general denial.

In addition to the authorities above quoted on this question, the court would cite the ease of Neier v. R. R. Co. (Supreme Court of Missouri), 23 Central Law Journal, 345, wherein it was held:

“Where an answer states that if plaintiff suffered damages it was brought about ‘either in whole or in part by her own carelessness and negligence contributing thereto,’ contributory negligence is sufficiently pleaded.” Citing Bliss on Code Pleading, Section 211; 75 Mo., 295; 33 Mo., 40.

Black, in his work on Proof and Pleadings in Accident Cases, p. 209, note 1, says:

“Fact's tending to establish contributory negligence are admissible in evidence under a general denial without being specially pleaded.” Citing Turnpike Co. v. Baldwin, 57 Ind., 86.

Andrews & Morey and W. S. Harlan, for motion.

Shotts & Millikin, contra.

The court is, therefore, of the opinion that it is sufficient to allege generally that the plaintiff was guilty of negligence which contributed to his injury, and that it is not necessary to make a statement of the facts relied upon to show such negligence.

The motion to make more certain and definite will, therefore, be overruled.  