
    Street Railroad Co. v. Nolthenius.
    1. In an action for an injury alleged to have been caused by the negligence of the defendant, it is not necessary to allege in the petition that the injury was caused without the fault or negligence of the plaintiff, unless the other averments necessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence.
    2. Where an action was brought for an injury received by falling into a trench which had been dug in a public street for the purpose of laying or repairing the track of a street railroad, the opinion of a witness for •the plaintiff that the condition of the trench and track was dangerous, was not competent. But after the defendant, on cross-examination, had called out the opinion of the witness, that the condition, as he claimed it to be, of the trench and track was not dangerous, it was not error to permit the witness on re-examination to state his opinion that the condition, as claimed by the plaintiff, of the trench and track was dangerous.
    Error to the District Court of- -Hamilton County.
    The defendant in error filed his petition in the common pleas, in which he charged: “ That on or about the 28th day of February, A. D. 1877, the said defendant did, by its agents and servants, dig and open a ditch or trench on Elm street and McMicken avenue, at the point where they intersect, both being public streets, in the city of Cincinnati, Hamilton county, Ohio, and did then carelessly and negligently permit said ditch or trench to remain open and uncovered, and without fixing any light of warning or barrier at or near the same. And plaintiff further says that in consequence of the negligence and carelessness aforesaid of the defendant, in passing along said streets in the early evening of said day, he accidentally fell into the said ditch or trench and broke his right leg, and was badly hurt, whereby he became lame and diseased, and so remained up to the present time, and still is and will be permanently lame and weakened. That he ,1m been ever since said injury, and still is prevented from attending to his necessary and ordinary business and labor, to his loss and damage to the present time in the sum of $1500, and has been put to and incurred great expense, to-wit: to the sum of $1,000 for medical services and attendance in and about trying to get healed and cured of his said injury, and that he has been put to great pain and suffering, and has received permanent injury from said fall, and that he has thereby suffered further damages in premises in the sum of $5,000.
    To this petition the defendant answered by a general denial.
    On the trial the plaintiff called one John Bradley as a witness, and on cross-examination the defendant asked him this question:
    Q. Is there any custom or usage as to the manner of protecting against excavations when left during the day time, and if so, what is ordinarily done ?
    To which the witness answered:
    A. If it is a dangerous place, either put up a fence around it or keep watch.
    The defendant then asked the question:
    Q. Now, explain what you mean by dangerous obstructions — that you set a watchman to watch in the day time even; suppose it consisted of such a place where they had taken up a pavement for the purpose of relaying it, anything of that kind' — preparing by taking the pavement wholly up and laying the old paving block on the side of the street, and for some reason or other, going to dinner, anything of that kind, in the day time, leaving the place where they had cut out the width of the boulder or blocks, what would you say about that being a dangerous excavation, that you would leave a watchman or put a fence around it in the day time ?
    A. No; I would not leave a man there, excepting to protect the street from being torn up.
    Q. You would not regard that as a dangerous excavation requiring a watchman or a fence ?
    A. No, sir.
    The plaintiff then on re-examination asked the question:
    Q. Supposing that the street is left in a condition to put boulders in and there are two tracks upon the road bearing the same relation to each other as this, now state whether or not, in your judgment, it would be dangerous to leave it open there, with the tracks in that way — leave it open in the way, say it is open for the purpose of putting in boulders.
    To which the witness answered:
    A. Yes, that would be dangerous; anything of that kind we would put a fence or timber across it, and stop the travel there.
    All of the examination of this witness was objected to and objections overruled, and exceptions.
    Upon the trial the plaintiff recovered a judgment, which was affirmed by the district court.
    
      
      Stallo Kittredge and Paxton Warrington, for plaintiff in error.
    1. As to the admission of incompetent testimony, see St. P. R. Co-, v. Shires, 18 Ohio St., 225; St. R. P. Co. y. Stallmen, 22 Ohio St., 1; Turnpike Co y. Coover, 26 Ohio St., 520; Ins. Co. v. Hearmer, 2 Ohio St., 452; Wharton on Ev., §§ 436, 509-513; Crane v. Northfield, 33 Yt., 124; Hoivell v. Wright, 3 Allen, 166; Montgomery v. Scott, 34 Wis. 327; Oleson v. Talford, 37 Id., 327; Hughes v. Muscatine, 44 Iowa, 672 ; Chicago v. McCiven, 78 Ills., 347; Patterson v. Colebroolc, 29 N. H., 94; Winters y.' P. R., 39 Mo., 468.
    2. As to whether the petition should aver that the plaintiff was not guilty of negligence, see 2 Thompson on Neg., 1175, 1253. Railroad Co. v. Peters, 80 Ind., 168 ; Railroad Co. v. Barber, 5 Ohio St., 571; Railroad Co. v. Blliott, 28 Ohio St., 340.
    
      Me Cuffey, Morrill Strunk and Ph. Bolle, for defendant in error.
    1. As to the question of pleading, see Shear. & Red. on Neg., § 44, and cases there cited: Shefy. City, 16 W. Ya., 307; Thompson v. Railroad Co., 51 Mo., 190; Railroad Co. v. Heorst, 93 U. S., 291; Hart v. Peters (Wis.) 14 Reporter, 542; Robinson v. Cary, 28 Ohio St., 241; Railroad Co. y. Whitacre, 35 Ohio St., 627.
    As to admissibility of evidence, see Commonwealth v. Borsey, 103 Mass., 412; Com. v. Sturtivant, 117 Id., 122; Clipper v. Logan, 18 Ohio, 375; Railroad Co. y. Whitacre, 35 Ohio St., 627; Raymond v. City, 6 Cush., 624; Grreenleaf on Ev., § 468; Taylor y. Boggs, 20 Ohio St., 516.
   McCauley, J.

This case presents two questions. First, was it necessary that the plaintiff should have alleged in his. petition that he received the injuries complained of without fault or negligence on his part, and second, was it error to admit the opinion of the witness Bradley on his re-examination that the condition of the street and railroad track was dangerous. The general rule is that contributory-negligence is matter of defense. This is a rule of pleading as well as of evidence. It has been frequently held that where the evidence of the plaintiff raises a presumption of his negligence contributing to the injury, the burden is upon him to remove the presumption before he can recover. Railroad Co. v. Whitacre, 35 Ohio St., 627; Hays v. Gallagher, 72 Pa. St., 140; Robinson v. Gary, 28 Ohio St., 241.

If the plaintiff in the averments of his petition necessary to state his cause of action, by reason of his relation to the defendant as agent, employee or otherwise, suggests the implication of negligence on his part, that implication mu'st be negatived by an allegation that he was without fault. Railroad Co. v. Barber, 5 Ohio St., 541. But where the relation between the parties does not require of the plaintiff any duty toward the means from which the injury resulted beyond ordinary care to avoid injury, no sueh averment is necessary. Where nothing more than ordinary care is required that degree of care will be presumed.

In this case the plaintiff was passing along a street and had no relation with the defendant requiring him to observe more than that ordinary care that is at all times required to avoid injury. The averment, therefore, that he was without fault, would be an averment of that which would be presumed and was not necessary.

As to the other question that the witness Bradley in answer to a question by counsel for plaintiff, gave it as his .opinion that the street in a condition supposed to exist when the injury occurred, was dangerous. If this opinion had been given by the witness in his testimony in making the case of the plaintiff, it would have been improper and its admission would have- been error. But the opinion was given in re-examination after the defendant had asked the witness whether the street was dangerous in a condition which he claimed to have existed at the time of the injury, and the witness had answered that it was not. After the rvitness had thus ansAVered, counsel for plaintiff asked him Avhether or not the street Avas dangerous in a condition claimed by the plaintiff at the time of the injury, to which he answered that in that condition it would be dangerous. The witness in his examination in chief had said -that if the street was in a dangerous condition, it should have been fenced up or guarded; but had not said whether it was dangerous or not, until he was asked by the defendant, and then only stated that in the condition supposed by the defendant it would not be dangerous.

After the defendant had gone beyond the proper limits of a cross-examination, and had called out an opinion of the witness favorable to his claims in the case, it was not error to permit the plaintiff to re-examine on the same matters. 1 Greenleafs Evidence, sec. 468; Clipper v. Logan, 18 Ohio, 375; Taylor v. Boggs, 20 Ohio St., 516.

Judgment affirmed.  