Bowker v. Donnell

• Decision Date: 04 October 1915
• Citation: 226 F. 359
• Parties: BOWKER v. DONNELL.
• Court: U.S. District Court — Southern District of New York

226 F. 359

BOWKER v. DONNELL.

United States District Court, S.D. New York.

October 4, 1915

This is an action for personal injuries caused by the alleged negligence of defendant. The answer sets up as a defense that the injuries were caused in whole or in part by the negligence of the plaintiff. Plaintiff moves for a bill of particulars, specifying each and every act of negligence or want of care of the plaintiff.

Weed Henry & Meyers, of New York City, for plaintiff.

Arrowsmith & Dunn, of New York City, for defendant.

LACOMBE Circuit Judge.

Plaintiff relies on Szymanski v. Contact Process Co., 82 Misc.Rep. 46, 143 N.Y.Supp. 604. In that case the statute under which the action was brought expressly provided that:

'Contributory negligence of the injured person shall be a defense, to be so pleaded and proved by the defendant.'

This action is not brought under that statute, and although contrary to the rule in the state courts (of New York) contributory negligence is in the federal courts a defense, the burden of establishing which is on the defendant, he need not plead such defense, but may avail of it, whether it is made out at the trial by plaintiff's evidence or by his own. Plaintiff also refers to Havholm v. Whale Creek Iron Works, 159 A.D. 578, 144 N.Y.Supp. 833, and Ithaca Trust Company v. Marion, 163 A.D. 56, 148 N.Y.Supp. 775.

Counsel cites the following federal authorities: Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 Sup.Ct. 653, 35 L.Ed. 270; Washington, etc., Co. v. Harmon's Administrator, 147 U.S. 571, 13 Sup.Ct. 557, 37 L.Ed. 284; Texas, etc., Co. v. Volk, 151 U.S. 73, 14 Sup.Ct. 239, 38 L.Ed. 78; Chicago, etc., Co. v. Price, 97 F. 423, 38 C.C.A. 239; Armour & Co. v. Carlas, 142 F. 721, 74 C.C.A. 53; Jefferson Hotel Co. v. Warren, 128 F. 565, 63 C.C.A. 193; O'Hara v. Central R.R. of N.J., 183 F. 739, 106 C.C.A. 177; Ward v. Dampskibselshabet (D.C.) 136 F. 502; Fitchburg R.R. v. Nichols, 85 F. 945, 29 C.C.A. 500. None of these sustain the proposition that a defendant must plead contributory negligence of plaintiff in order to avail of it as a defense.

The Court of Appeals for the Second Circuit in Long Island R.R. v. Darnell, 221 F. 194, referring to a charge by the trial judge that any question of plaintiff's contributory negligence was out of the case, because defendant had not pleaded it, said:

'This was error. The rule in this circuit was laid down in Canadian Pacific R.R. v. Clark, 73 F. 76, 74 F. 362, 20 C.C.A. 447 (1896). Contributory negligence is a defense, the burden of proving which is on the defendant; but it is a defense which defendant can avail of without pleading it.'

In the case cited in the above quotation it was said:

'A system of procedure which denies to defendant the right to avail of plaintiff's contributory negligence unless he has alleged it in his pleading is inherently vicious. There are many cases where the fact that plaintiff's negligence was the real cause of the accident is wholly unknown until the trial. It is locked up in plaintiff's breast, and only made

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