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Konig v. N.-C.-O. Ry.

December 31, 1913


Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

James Glynn, and Mack, Green, Brown & Heer, for Appellant.

Parker & Frame, for Respondent.

By the Court, McCarran, J.:

This is an action wherein William Konig, plaintiff and respondent, brought suit in the Second judicial district court against the appellant herein, Nevada-California-Oregon Railway, a corporation. The respondent, a man about 58 years old and of foreign birth, had been in the employ of the defendant company for a period of about seven years, during which time he had been more or less constantly engaged as a millman, performing services in and about appellant's mill, and operating machinery and equipment therein, among which was a circular ripsaw fourteen inches in diameter. Respondent was earning approximately $3 a day.

On the 1st day of December, 1909, at about 10 o'clock in the morning, the respondent was injured by being struck with a piece of timber he had been cutting down to the proper dimensions, with a circular ripsaw, for a buffer block for one of appellant's cars, pursuant to instructions given him. By reason of the injuries thus sustained, respondent's left arm was so maimed as to become entirely useless, his ribs on the left side were

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broken, and he was internally injured. As a result of his injuries he was confined to his bed for several months and forced to undergo an operation more or less serious in its nature. On the 2d day of January, 1911, the respondent brought suit against the defendant corporation and in due time the case was tried before a jury.

The defendant corporation joined issues with the plaintiff by an answer setting up specific denials of each and every allegation of the complaint, omitting any plea of affirmative defense. The result of the trial was a verdict for the sum of $15,000, by reason of which verdict judgment was rendered in favor of the respondent and against the appellant. Motion for a new trial having been made before the trial court, the same was denied, and from the judgment and order denying defendant's motion for a new trial appeal is taken to this court.

A motion to dismiss the appeal has been made in this case on behalf of the respondent, and two grounds are relied upon in support of that motion: First, that the copy of the notice of appeal was served prior to the filing of the same; and, second, that the surety on the undertaking on appeal failed to justify after exception was filed to the sufficiency thereof.

1-3. As to the first proposition, it appears that the notice of appeal was dated and filed December 28, 1911, and there is attached to the original notice the affidavit of James Glynn, attorney for appellant, set forth as follows: “That on the 28th day of December, 1911, and within the time allowed by law, at Reno, Nevada, he served a true copy of the within notice of appeal on Parker & Frame, attorneys for plaintiff, by delivering to J. S. Parker, of said firm, a true copy of said notice.” Attached to the respondent's motion to dismiss is the affidavit of J. S. Parker, one of the attorneys for respondent, which is in part as follows: “* * * That at the time of service of the copy of the notice of appeal the original notice of appeal had not been filed in the office of the clerk of the Second judicial court, in and for Washoe County, Nevada; that the notice of appeal as filed with said clerk

[36 Nev. 181, Page 194]

was filed after the copy of the same was served upon the attorneys for the plaintiff and respondent; that the notice served upon the plaintiff and respondent was not and is not a copy of the notice of appeal now on file herein; that the notice of appeal served upon the attorneys for the plaintiff and respondent in this case on the 28th day of December, 1911, is attached hereto and made a part of this affidavit.” The copy of the notice of appeal, attached to the affidavit of J. S. Parker, quoted above, and made a part thereof, is a correct carbon copy of the original notice of appeal, save and except that it does not contain a copy of the file marks of the clerk.

In the case of Elder v. Frevert, 18 Nev. 279, this court held that when a transcript on appeal fails to show that the notice of appeal was served as required by the statute, and a motion is made to dismiss the appeal on that ground, the court may grant leave to the appellant to supply this omission by filing an affidavit as to the proof of service upon the argument of the motion.

In the case under consideration, after the motion to dismiss the appeal was filed in this court, and on the 27th day of April, 1912, James Glynn, attorney for appellant, filed his affidavit, in which he makes oath that a copy of the notice of appeal was served after the filing of the original. In this respect the affiant, James Glynn, goes considerably into detail as to the manner of filing and service. It appears from the record that the notice of appeal was filed in the clerk's office on the same day on which it is admitted in the affidavit of respondent's counsel the copy, as attached to the affidavit, was served on him. This court has held that, where the proof shows that the service of copy was made on the same day as the filing of the original, and in the absence of proof to the contrary, there is a presumption that the filing and service proceeded in regular order; that is, that the notice was filed before the copy was served. (State v. Alta S. M. Co., 24 Nev. 230.)

Counsel for respondent in its motion places great stress upon the fact the copy served does not show the endorsements upon the back thereof, nor copy of the file marks

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of the clerk; but in this respect it is our judgment that the endorsements upon the back of the original notice are no part of the notice, and a failure to include all or any of them does not affect the copy served. It would seem that the affidavit of J. S. Parker, to the effect that the original notice was filed after the service of a copy, was based, to some extent at least, upon the assumption that the copy of the notice must also include a copy of all endorsements. Nowhere in his affidavit does counsel for respondent set forth extrinsic facts which would tend to show that he had any particular knowledge of the order of filing and service, other than that gained from the documents themselves.

Even aside from the affidavits in this case, the record shows that the copy was served on the same day on which it was filed. Therefore, in the absence of proof, the presumption is that they were filed in regular order; hence it is incumbent upon counsel for respondent to overcome this presumption. This, we think, in view of the counter affidavits in behalf of the appellant, has not been accomplished.

4, 5. As to the second proposition relied upon in furtherance of respondent's motion to dismiss, the record discloses that, on the day following the filing of the notice of appeal and the undertaking on appeal, respondent filed his exception to the sufficiency of the surety in the following form: “Comes now the plaintiff in the above-entitled action and excepts to the sufficiency of the securities on the undertaking filed herein on appeal and on stay of execution on the 28th day of December, 1911, and asks that the said surety or sureties on said undertaking appear before the judge of the Second judicial court in Washoe County, Nevada, and justify sureties as required by section 3443 of the Compiled Laws of Nevada.”

The statute in force at the time at which this appeal was taken did not require the party excepting to the sufficiency of the surety to serve notice of his exception upon the adverse party, and it is admitted in this case that no notice of respondent's exception was served

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upon the appellant. It is contended by counsel for the respondent that under the provisions of the statute they were not required to give or serve notice on appellant of a demand for justification of the surety, but that appellant was bound, at its own peril, to take notice of any such demand, and authorities are cited in support of that contention. To say the least, the recognition and enforcement of a rule of this kind would be exceedingly harsh, and in view of rule 10 of the district court, which we believe applicable to matters of this character, it is our judgment that the appellant is entitled to notice of exception to the sufficiency of the surety and demand for justification. Furthermore, this court held, in the case of Pratt v. Rice, 7 Nev. 123, that if on motion there is no good cause for haste or concealment, and if facts are to be found in the ascertainment of which the opposite party is deeply interested, such party has a right to notice and an opportunity to be heard.

In this case the appellant did not offer personal surety, but, on the other hand, the United States Fidelity and Guaranty Company executed appellant's bond on stay of execution pending the hearing and determination of the motion for a new trial, and the trial judge on the 16th day of November, 1911, approved the bond given on stay of execution. The rules of the district court require that bonds given to stay execution, pending the determination of motion for a new trial, must be approved by the court. The statute under which this appeal was taken did not require the approval of undertakings upon appeal, in the absence of a demand for justification of the surety.

The undertaking on appeal in this case was given pursuant to the provisions of the act of March 26, 1909, authorizing surety companies to become sole surety upon official or other bonds. The Revised Laws, secs. 695-701, supersede the prior act of 1887, as amended (Stats. 1903, p. 63). Applicable to this subject this court held, in the case of Botsford v. Van Riper, 32 Nev. 214, that the former act was a general law, which did not repeal the provisions of the practice act relative to undertakings,

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but provided an additional method for furnishing such undertaking at the option of the appellant.

Section 5 of the act of 1909 (Rev. Laws, 698) provides how surety companies shall justify when required so to do. The section is as follows: “The certificate or any duplicate certificate issued by the secretary of state in accordance with the provisions of this act shall be prima facie evidence in all the courts of this state of all matters herein stated; provided, such certificate be not more than six months issued. Any printed copy of a circular issued by the treasury department of the United States known as Form No. 356, stating the amount of the capital and surplus of any such surety company, and not more than six months old, as appears from the date of issuance thereof, shall be prima facie evidence of the amount of such capital and surplus and of the amount to which such company is entitled to be received as sole surety on any bond in this state, and shall, if accompanied with the certificate of the secretary of state herein mentioned, be a complete justification for any amount not exceeding ten per centum of such capital and surplus, whenever any such company shall be required to justify on any bond or undertaking; provided, that the party requiring such justification may produce competent evidence to show that such surety company is not worth such sum over and above all its just debts and liabilities exclusive of property exempt from execution; provided, further, that bonds and undertakings on which such company may have become surety shall not be considered as debts or liabilities unless the obligation thereon shall have accrued and the obligee shall have demanded payment from such company.”

Section 3443 of the statute under which this appeal was taken (Comp. Laws) relates to the justification of personal sureties, and in that respect the method of justification of personal sureties was provided for by section 3699 of that statute (Comp. Laws). That statute makes provision for the examination of the sureties upon oath touching their qualifications. An entirely different

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method is provided by section 698, Revised Laws, supra, for the justification of the surety, when the same is a surety company.

The exception to the surety filed by respondent in this case might be sufficient and applicable where personal sureties were given on the bond, but it is our judgment that it was not applicable, nor sufficient, where the bond was executed by a surety company. Hence the motion to dismiss is without merit.

There is no question in this case more vital to be considered than that of the pleadings of plaintiff and defendant, in view of the assignments of error made by appellant. The complaint sets forth, in section 8, the following allegation: “Plaintiff further avers that, in and about the operation of the said saw at the time of the injury aforesaid, he was exercising ordinary care and diligence and was without fault or negligence on his part.” In the answer the defendant, appellant herein, relied entirely upon specific denials of each and every allegation and averment of the complaint, without setting up affirmative matter or an affirmative defense of any kind; and, by reason of the attitude of the defendant in so relying upon denials for a defense, we are confronted with the question of whether or not contributory negligence or approximate cause or assumed risk are properly defenses in this case and, if so, to what extent.

The only attempt on the part of the defendant to raise the question of contributory negligence was a specific denial of the above-quoted allegation as follows: “Defendant denies that, in and about the operation of said saw at the time of the alleged injury, plaintiff was exercising ordinary care and diligence, or any care and diligence, and denies that plaintiff was without fault or negligence upon his part.”

6. Appellant contends that by this denial, as set forth herein, the issue of contributory negligence became an element in the case sufficient to warrant the defendant in introducing evidence in support of that defense. We

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find the authorities, especially in American jurisdictions, to be exceedingly concurrent in declaring that, in an action for negligence or personal injury, the plaintiff need not allege that the injury of which he complains was caused or occasioned without his fault. He need not aver that he was not guilty of contributory negligence (in other words, he need not negative his own negligence or fault), the general reason for this being that it is properly considered a matter of defense; and it is not necessary to allege matters which more properly would or should come from the other side. At common law there was no procedure or rule requiring the plaintiff in a case of negligence to assert that he was free from fault or negligence. No rule was laid down at common law which would require of the pleader any independent or explicit allegation that he was without fault. (Lee v. Troy Citizens' Gaslight Co., 98 N. Y. 115.)

The Supreme Court of the United States, in the case of Texas and Pacific Railroad Co. v. Volk, 151 U. S. 73, 14 Sup. Ct. 239, 38 L. Ed. 78, speaking through Mr. Justice Gray, laid down the rule as follows: “By the settled law of this court, not controverted at the bar, contributory negligence on the part of the plaintiff need not be negatived or disproved by him, but the burden of proving it is upon the defendant.”

This same doctrine has been reasserted in other decisions of the supreme court, and this general rule is therefore well established in that court. (Washington R. Co. v. Harmon's Admr., 147 U. S. 571, 13 Sup. Ct. 557, 37 L. Ed. 284; Hough v. Railroad Co., 100 U. S. 213, 25 L. Ed. 612; Indianapolis R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898.) The rule, in the state jurisdictions, applicable to this phase has been largely to the same effect, with some slight exceptions to that laid down both at common law and in the federal court. (Crane v. Mo. Pac. R. Co., 87 Mo. 588; Mary Lee Coal Co. v. Chambliss, 97 Ala. 171, 11 South. 897; House v. Meyer, 100 Cal. 592, 35 Pac. 308; Mayes v. Chicago R. Co., 63 Iowa, 562, 14 N. W.

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340, 19 N. W. 680; Thompson v. No. Mo. R. Co., 51 Mo. 190, 11 Am. Rep. 443; Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Grant v. Baker, 12 Or. 329, 7 Pac. 318.)

The allegation of the complaint quoted above, which tends to negative the negligence or fault of the plaintiff, was unnecessary. It could have been entirely eliminated in view of the other allegations of the complaint. It is true that should the plaintiff in stating his cause of action detail facts which disclose prima facie that he was guilty of contributory negligence, or that his acts were the proximate cause of the injury, it becomes incumbent upon him, for the purpose of overcoming such inferences, to allege that the injuries occurred without fault on his part; and, unless such disclosures show clearly that the plaintiff was in fault, such averment is unnecessary and superfluous.

In the case of Grant v. Baker, supra, the Supreme Court of Oregon, speaking through Mr. Justice Thayer, said: “The impression seems to have prevailed, to some extent at least, that this court there held (Walsh v. O. R. & N. Co., 10 Or. 250) that a plaintiff would not be entitled to recover in an action for negligence without showing affirmatively that the injury was not the result of his own negligence; that he would have to first establish that there was no contributory negligence upon his part. I do not think that is the law, nor that the case of Walsh v. Oregon Railway and Navigation Company intended to hold any such doctrine.” In this same case the court, in attempting to establish the rule, said: “I think it has always been understood by this court that contributory negligence is a defense, and must be averred as such * * * where the injury results from the direct act or omission of the defendant, which prima facie is negligence in itself, and the plaintiff received an injury in consequence thereof, while pursuing his ordinary course of affairs, he will not be compelled, in order to recover his damages, to prove that he was free from fault.”

In the case of Johnston v. O. S. L. R. Co., 23 Or. 100, 31 Pac. 285, referring to the Grant-Baker decision, supra, the

[36 Nev. 181, Page 201]

supreme court said: “We think the correct rule is laid down by Thayer, J., in Grant v. Baker, supra, and that in order to recover for personal injury it is not necessary to allege that the plaintiff has been free from negligence, or to deny that any act of his contributed to the injury sustained; that contributory negligence is a defense which must be pleaded; and that while the burden of proof is on the plaintiff to show that the appliance was defective, and that the master had knowledge or notice thereof, or ought to have had, the burden of proof is on the defendant to show that the servant did know the defect and that his negligence has contributed to the injury.” To the same effect is the case of Northern Pacific Ry. Co. v. Hess, 2 Wash. 387, 26 Pac. 866.

7. In view of the position taken by appellant and in view of its offer of certain evidence, presumably for the purpose of establishing an affirmative defense of contributory negligence, the phase of the case applicable to the pleadings is especially interesting and vital. The appellant contends that the specific denial of the allegation of ordinary care and diligence was sufficient to raise the issue of contributory negligence and was sufficient to take the place of an affirmative plea of contributory negligence and was sufficient to warrant the court in admitting testimony which would tend to establish this special defense. We think that the answer fails to raise the issue of contributory negligence by its specific denial. If the defendant had evidence that would have established negligence on the part of the plaintiff contributing to the accident, it was the duty of the defendant, if it sought to avail itself of that evidence, to specially plead contributory negligence, and without such a special plea the affirmative defense of contributory negligence was not an element in the case, except as hereinafter discussed.

The authorities are not altogether uniform on this particular phase. The greater line of authorities, however, hold that contributory negligence must be especially pleaded. It is interesting to follow the rule from its

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earlier adoption to the present time and especially to note the application of this rule in cases where common law strictly prevailed. Lord Chancellor Ellenborough, in the case of Knapp v. Salisbury, Campb. Reps. vol. 2, 500, laid down the rule applicable at that time. In that case the chancellor asserts that contributory negligence ought to be especially pleaded, and this decision of the chancellor is quoted approvingly in many of the later English cases. By far the greater number of the state jurisdictions have adopted a similar doctrine.

In the case of Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905, the court said: “It is the doctrine of this jurisdiction that contributory negligence is a matter of defense, and that plaintiff need not allege or prove its absence.”

The above rule was again referred to and approved in the case of Nelson v. Boston and Montana M. Co., 35 Mont. 229, 88 Pac. 785.

In the case of Kennedy v. S. P. R. Co., 59 S. C. 535, 38 S. E. 169, the Supreme Court of South Carolina, in passing upon this subject, appropriately quotes its former decision upon a similar matter and says: “In actions for injuries to person or property alleged to have resulted from the defendant's negligence, he may prove, under a general denial, that the wrong was caused by the negligence of third persons, not agents of the defendant, and for whom he was not responsible. * * * Where a party desires to avail himself of the defense of contributory negligence, he must set up such defense in his answer in order to entitle him to offer evidence to sustain such defense. * * * The reason why testimony is admissible, under a general denial, to prove that the injury was caused by the negligence of a fellow servant is because its tendency is to show that there was no negligence whatever on the part of the defendant. On the other hand, the reason why it is necessary to set forth in the answer the defense of contributory negligence on the part of the plaintiff is because the testimony showing such contributory negligence does not disprove the allegation of the complaint that the injury was caused

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by the negligence of the defendant. The defendant, by setting up in his answer the defense of contributory negligence on the part of the plaintiff, does not attempt to escape liability by showing a failure of negligence on his part but, because the plaintiff has done that which prevents a recovery against him, although he (the defendant) may have been guilty of negligence. Such facts would constitute an affirmative defense, of which the defendant could not get the benefit unless it was set up in the answer.”

Mr. Pomeroy, in his work on Remedies and Remedial Rights, is emphatic in his declarations, and the learned author's assertion in this respect is borne out by well-considered opinions. (Pomeroy's Remedies and Remedial Rights, 671-675; Wilson v. Charleston and So. Ry. Co., 51 S. C. 79, 28 S. E. 91.)

As we have already said, the courts are by no means uniform in their holding on this phase of pleading. Some jurisdictions have held that contributory negligence need not be pleaded. (St. Anthony Falls River Co. v. Eastman, 20 Minn. 277; Levy v. Metropolitan Street Ry. Co., 34 Misc. Rep. 220, 68 N. Y. Supp. 944; McQuade v. Chicago Ry. Co., 68 Wis. 616, 32 N. W. 633; N. Y. R. R. Co. v. Robbins, 38 Ind. App. 172, 76 N. E. 804.)

It must be observed, however, from a very careful consideration of the decisions of the various courts, that by far the greater number of jurisdictions and the stronger reasoning favor the doctrine that the defense of contributory negligence cannot be raised under a general denial, and that there must be a special plea of contributory negligence in order to render evidence of it admissible. (Kansas City R. Co. v. Crocker, 95 Ala. 412, 11 South. 262; De Amado v. Friedman, 11 Ariz. 56, 89 Pac. 588; D. & R. G. Ry. Co. v. Smock, 23 Colo. 456, 48 Pac. 681; Jacksonville Elec. Co. v. Sloan, 52 Fla. 257, 42 South. 516; Willis v. City of Perry, 92 Iowa, 297, 60 N. W. 727, 26 L. R. A. 124; Western Union Tel. Co. v. Morris, 10 Kan. App. 61, 61 Pac. 972; Hudson v. Wabash Western R. Co., 101 Mo. 13, 14 S. W. 15; Collins v. Fillingham, 129

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Mo. App. 340, 108 S. W. 616; Birsch v. Citizens' Elec. Co., 36 Mont. 574, 93 Pac. 940; Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; Smith v. Ogden R. Co., 33 Utah, 129, 93 Pac. 185; Thompson's Commentaries on Law of Negligence, sec. 365.)

In the many cases of damages growing out of personal injuries decided by this court, this particular question of pleading has never been raised, or at least has never been directly passed upon in so far as we are able to discover, and hence we believe that we are establishing the rule for the first time in this jurisdiction as to the necessity of an affirmative plea where the defendant proposes to rely upon contributory negligence as a defense.

The plea of contributory negligence is generally conceded and regarded as one in the nature of confession and avoidance. It is a plea which tends to admit the negligence of the defendant, but to avoid the consequences to the defendant by asserting that through the negligent acts of the plaintiff in contributing to the accident the injuries resulted. In the case of Horton v. Ruhling & Co., 3 Nev. 498, this court said: “New matter which is simply an avoidance of the cause of action made out by the plaintiff should always be specially pleaded. Such is the rule declared by Chitty, and it is unchanged under the modern practice. * * * No proof of new matter in avoidance can therefore be admitted unless it is so pleaded as to apprise the opposing party of the nature of the defense.”

A special plea, setting up an affirmative defense is in our judgment the only proper pleading in a case of this character under which or by reason of which evidence can be introduced at the trial to sustain the issue of contributory negligence. It will not suffice if the defendant in an action of this character merely denies the allegation of plaintiff, wherein the latter avers the negligence of the defendant, even though he negative negligence or fault on his part.

In the case of Hudson v. Wabash Western R. Co., 101 Mo. 13, 14 S. W. 15, this question was passed upon by the Supreme Court of Missouri under conditions very similar

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to those presented in the case under consideration in that the pleadings in that case were almost identical to those of this case. In that case the complaint set forth: “That by said negligent acts and without any fault on his part he was then and there caught between the two of said cars.” To this allegation the defendant answered by denying this averment, and by their specific denial they contended that the defense of contributory negligence was raised without a special plea or defense asserting negligence on the part of the plaintiff. The Supreme Court of Missouri, speaking through Sherwood, J., in passing upon the case, said: “It is the unquestioned law of this state that contributory negligence is strictly an affirmative defense, and, in order to avail a defendant as a matter of pleading, it must be affirmatively pleaded.” (O'Connor v. Railroad Co., 94 Mo. 155, 7 S. W. 106, 4 Am. St. Rep. 364; Donovan v. Railway Co., 89 Mo. 147, 1 S. W. 232; Schlereth v. Railroad, 96 Mo. 509, 10 S. W. 66.)

The doctrine laid down in the Hudson case, supra, is affirmed in a very recent case (Goodloe v. Metropolitan Street Ry. Co., 120 Mo. App. 194, 96 S. W. 482) to the effect that contributory negligence is an affirmative defense which must be pleaded.

Again, in the case of Collins v. Fillingham, 129 Mo. App. 340, 108 S. W. 616, the court said: “Contributory negligence, when not pleaded, is not available as a defense, unless plaintiff's evidence affirmatively shows contributory negligence.”

In the case of Fechley v. Springfield Traction Co., 119 Mo. App. 358, 96 S. W. 421, the court held that where, in an action for negligence, the only answer remaining in the record, after the issues were made up, consisted in a general denial, plaintiff's contributory negligence was no defense, unless the testimony he introduced so clearly showed that he was negligent in a manner contributing to the accident that the court would have been warranted in denying him relief.

8, 9. In the case under consideration the defendant, having failed to especially plead contributory negligence, seeks to avoid this by invoking the doctrine that,

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when the plaintiff's own evidence makes out a case of contributory negligence, there can be no recovery. Under the authorities establishing the rule, this contention may be maintained, but the plaintiff's case must be of such a character as to warrant the trial court in saying, as a matter of law, that the plaintiff has been so flagrantly guilty of contributory negligence as to defeat his action. Where the question of contributory negligence is a debatable one, or one upon which reasonable minds might differ, the question should be submitted to the jury.

There is an exception to the rule requiring contributory negligence to be especially pleaded. This exception is generally stated thus: When the fact of contributory negligence is disclosed by the evidence offered in behalf of the plaintiff, in such a case a defendant is entitled to take advantage of such disclosure, notwithstanding the fact that he has made no plea of contributory negligence. A very appropriate application of this rule is stated in the case of McMurtry v. L. N. O. & T. Ry. Co., 67 Miss. 607, 7 South. 403, wherein the court said: “If plaintiff's pleadings and proof had left the case blank as to his contributory negligence, and it had become necessary for the defendant to take the affirmative and to show as a defense plaintiff's contributory negligence, there, we suppose, it would be the practice to require such defense to be set up under an especial plea. But when, as in this case, contributory negligence is palpably made to appear by the plaintiff's evidence, we are aware of no rule, nor can we see the reason for any rule, requiring the defendant to either plead or prove such contributory negligence.”

As was asserted by the Supreme Court of Utah, in the case of Bunnell v. Railroad Co., 13 Utah, 314, 44 Pac. 927, contributory negligence is a matter of defense and must be alleged and proven by the defendant; but where the testimony on the part of the plaintiff, who seeks to recover damages for injuries resulting from negligence, shows conclusively that his own negligence or want of ordinary care was the proximate cause of the injury, he

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will not be permitted to recover, even though the answer contains no averment of contributory negligence. As a matter of fact, even though there be no defense of contributory negligence in the trial of the case, if the evidence is undisputed or is of such a conclusive character that the court in the exercise of sound judicial discretion would be compelled to set aside the verdict by reason of the evidence of the plaintiff disclosing flagrant contributory negligence, it is well established that the court may withdraw the case from the jury altogether and direct a verdict for the defendant. In a case of that kind it would be unnecessary for the defendant to either plead or prove a special defense of contributory negligence.

The authorities generally hold under this exception to the rule that, where the testimony of the plaintiff shows circumstances of contributory negligence which absolutely defeat his right of action and disprove his own case, the defendant is at liberty to take advantage of such testimony, though produced by the adversary. This principle, however, does not apply to the pleadings, and applies only to instances where the testimony produced on the part of the plaintiff is such as to absolutely defeat his right of action by showing conclusively either that the accident occurred through wilful neglect or that he was so flagrantly guilty of negligence as to preclude the possibility of the defendant being liable. Where testimony of such a nature is produced by the plaintiff's case, the defendant may take advantage of it either for the purpose of moving a non-suit or in any way that he may see fit. This, however, would not permit the defendant to introduce evidence tending to prove contributory negligence on the part of the plaintiff, unless by an especially pleaded allegation in the answer the question was raised. From this, then, it will be observed that the contributory negligence of the plaintiff must either appear unequivocally by the allegations of the complaint or must be raised and produced by conclusive evidence given in behalf of the plaintiff in order to warrant the defendant in taking advantage of such disclosure.

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Here it may be questioned: How far may the defendant go in taking advantage of the disclosure of contributory negligence coming from the plaintiff's own case? It is our judgment that the defendant may take advantage of such disclosures only to the extent of using the evidence produced or the averments of the complaint as matters tending to defeat the plaintiff, and may rely upon such disclosures either for the purpose of non-suit, where, at the conclusion of the plaintiff's case, it is manifest that the case should not go to the jury, or for the purpose of argument in favor of a verdict finding against the plaintiff; but, under no line of reasoning can we conceive, in view of the rule generally established, that such disclosures on the part of the plaintiff would take the place of an affirmative plea or defense of contributory negligence. Moreover, such evidence, if produced during the presentation of plaintiff's case in chief, will not open the door for defendant to introduce new evidence independent of the plaintiff's testimony in support of contributory negligence, unless he is prepared for the introduction of such testimony by pleading a special defense of contributory negligence.

Mr. Thompson, in his Commentaries on the Law of Negligence, sec. 369, clearly and concisely states the rule which, in our opinion, is the better one to be applied by courts in the trial of cases of this character and under conditions such as present themselves in this case. He says: “The doctrine intended to be stated by such courts, and clearly stated by others, is that, where the plaintiff's own evidence, whether delivered by his own mouth or the mouth of his witnesses, shows that he, or the person killed or injured, was guilty of negligence contributing to the death or injury, there can be no recovery, whether the defense of contributory negligence has been pleaded or not. If, on the other hand, the conduct of the plaintiff is compatible with the conclusion that he exercised reasonable care, he cannot be nonsuited, but the case must go to the jury.” The learned author quotes approvingly from a recent decision of the Supreme Court of Pennsylvania as follows: “Contributory negligence is a matter

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of defense, and the onus probandi is on the defendant, unless the plaintiff's own evidence sufficiently discloses the fact of contributory negligence. In that event plaintiff cannot recover, and of course the defendant is relieved from the necessity of proving what has already been established by the plaintiff's evidence. If, however, the plaintiff makes out a prima facie case without disclosing contributory negligence, the defendant must assume the burden of making out his defense.” (Thompson's Commentaries on Law on Neg. sec. 369, et seq.)

It may be questioned in the light of these authorities: How may this rule, if applied, affect a defendant in a case of this character, who has failed or refused to especially plead the defense of contributory negligence, and a prima facie case is made out by the plaintiff, such as to warrant the court, at the conclusion of his case, to submit the case to the jury? The answer is obvious that the affirmative plea of contributory negligence not having been raised by the defendant in his pleadings, and the evidence produced establishes a prima facie case, in the light of all the authorities it must follow that under such a state of affairs the defendant has by his act precluded himself from offering evidence tending to establish contributory negligence as against the plaintiff; and, where the court under such conditions holds evidence of this character inadmissible, it is not error. It is only where the plaintiff's case conclusively discloses negligence on his part that such disclosure may be taken advantage of by defendant in authorizing the court to advise a verdict for him. If, however, the evidence only tends to show, or only raises an inference of, contributory negligence, the question should properly go to the jury to be determined like any other question of fact. The mere suspicion of negligence arising from the plaintiff's case will not warrant the court in taking such action. On the contrary, the inference of negligence on the part of the plaintiff must be so strong as to be unavoidable and conclusive. Where some evidence disclosed during the plaintiff's case merely tends toward the conclusion of contributory negligence, but lacks that cogency to make

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it conclusive, then it merely raises a question for the jury and should be submitted to the jury. (Thompson's Commentaries on Law of Neg. vol. 1, sec. 471.)

The testimony of Konig, the respondent, as to his acts leading up to the accident must be reviewed in the light of these observations as to the law, and in that connection, and bearing directly upon the condition of the implement and the circumstances before, at the time of, and after the accident, the testimony of Webber and Pearl is to be considered.

10. The manner in which this accident occurred is described by the plaintiff in his testimony, and his acts detailed on direct and cross-examination are to be scrutinized in determining what part his acts may have played in bringing about the catastrophe. His immediate acts attending the accident are best related in his own language: “So I start in to run that piece through. The saw ran all right so far when I got about the end of that piece of timber where on the end wider than it was in front by the start. So that got tight between the gage and the saw. * * * That made the saw hot on the point. It has get hot start in buckling so I have to push that block through, and it got pretty near the end and tried to throw that block off so the saw ...

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