Birsch v. Citizens' Electric Co.

• Decision Date: 25 February 1908
• Citation: 93 P. 940,36 Mont. 574
• Parties: BIRSCH v. CITIZENS' ELECTRIC CO.
• Court: Montana Supreme Court

93 P. 940

36 Mont. 574

BIRSCH v. CITIZENS' ELECTRIC CO.

Supreme Court of Montana

February 25, 1908

Appeal from District Court, Fergus County; E. K. Cheadle, Judge.

Action by Joseph Birsch against the Citizens' Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Rudolf Von Tobel and M. S. Gunn, for appellant.

Frank E. Smith and J. C. Huntoon, for respondent.

HOLLOWAY J.

This is an action for damages for personal injuries. The plaintiff was employed as a hod carrier and mason's helper in the construction of a building for the Bank of Fergus County. At the time the plaintiff received his injuries, one wall of the building had been erected to a height of more than 20 feet. Scaffoldings were built against this wall for the use of the workmen; the second of these scaffolds being about 20 to 22 feet above the ground. The defendant electric company had certain wires strung on poles within 3 or 4 feet of this wall; the topmost wire being about 2 feet above the second scaffold, which scaffold was about 2 1/2 feet wide. This topmost wire carried an electro-motive force of about 6,000 volts. On the day of the injury the plaintiff was directed by a mason to move certain mortar from a mortar board at one end of the second scaffold to a mortar board at the other end of the same scaffold. It was raining, and the scaffold, boards and tools were wet. In the act of performing his work the plaintiff stepped upon the mortar board and slipped. Apparently he involuntarily threw out his hands to save himself or restore his equilibrium, when his left forearm came in contact with the heavily charged wire. He became at once insensible and fell to the ground and upon a pile of rock. The result of his contact with the wire was a burn on his left arm and a shock to his nervous system. His fall upon the pile of rock resulted in broken ribs, an injured shoulder, and other wounds and bruises. He commenced this action to recover damages, and charged the defendant electric company with negligence in maintaining the wire in close proximity to the building without having it sufficiently insulated, and with having it charged with a high and dangerous current of electricity. The answer consists of a denial of most of the material allegations of the complaint. It also contains the following paragraph: "(6) That if plaintiff was injured at the time alleged, or at any other time, by coming in contact with one of the defendant's wires charged with electricity, such injury was wholly due to plaintiff's own neglect, and was not in any way due to any negligence on the part of defendant, or of any of its officers." To the affirmative allegations of the answer the plaintiff replied. The cause was tried to the court sitting with a jury. A verdict was returned in favor of the plaintiff, and judgment was rendered and entered thereon from which judgment, and an order denying it a new trial, the defendant appeals.

The appellant makes three assignments of error, but in the opening paragraph of its brief its counsel tersely say "The first contention of appellant is that the negligence complained of was not the proximate cause of the injuries sustained by plaintiff. All the errors specified are based upon this contention, and the contention that plaintiff was guilty of contributory negligence." We have, then, for consideration, as counsel have outlined, but two questions, and these, stated in the reverse order, are: (1) Was the plaintiff guilty of contributory negligence? and (2) was the negligence of the defendant the proximate cause of plaintiff's injuries?

1. Objection is made to a consideration of the first question, upon the ground that the defense of contributory negligence is not pleaded in the answer. It is a rule, now well established in this state, that the defense of contributory negligence, in order to be available to the defendant, must be specially pleaded (Pryor v. City of Walkerville, 31 Mont. 618, 79 P. 240; Orient Insurance Co. v. Northern P. Ry. Co., 31 Mont. 502, 78 P. 1036, and cases cited), unless such contributory negligence appears from the allegations of the complaint (Nord v. Boston & Mont. Con. C. & S. Min. Co., 33 Mont. 464, 84 P. 1116, 89 P. 647), or unless the plaintiff's own case raises a presumption of contributory negligence (Nelson v. Boston & Mont. Con. C. & S. Min. Co., 35 Mont. 223, 88 P. 785). The only attempt made to plead contributory negligence is found in the paragraph of the answer quoted above, and that the allegations of that paragraph are insufficient is apparent. In the paragraph it is alleged that plaintiff's injury was wholly due to his own negligence, and was not in any way due to the negligence of the defendant. Contributory negligence on the part of plaintiff presupposes negligence on the part of the defendant. Beach on Contributory Negligence (2d Ed.) § 64; Wastl v. Montana Union Ry. Co., 24 Mont. 159, 61 P. 9. "Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred." 7 Am. & Eng. Ency. Law (2d Ed.) 371. This definition is approved in Moakler v. Willamette V. R. Co., 18 Or. 189, 22 P. 948, 6 L. R. A. 656, 17 Am. St. Rep. 717, and Montgomery G. L. Co. v. Montgomery & E. Ry. Co., 86 Ala. 372, 5 So. 735. In Washington v. B. & O. R. R. Co., 17 W.Va. 190, it is said: "Properly speaking, contributory negligence, as the very words import, arises when the plaintiff as well as the defendant has done some act negligently, or has omitted through negligence to do some act, which it was their respective duty to do, and the combined negligence of the two parties has directly produced the injury."

It goes without saying, then, that an answer which denies any negligence on the part of the defendant, and alleges that the injury resulted wholly from plaintiff's negligence, does not plead contributory negligence; and the defendant, having failed to plead contributory negligence, cannot rely upon it unless this case falls within one of the two exceptions noted above. It does not fall within the first exception, for the complaint alleges: "That the said injuries complained of herein were caused by the gross negligence of the defendant, its agents and servants; that the said plaintiff was entirely without negligence on his part." Does the case, then, fall within the second exception, or, in other words, did the plaintiff's own...