Canadian Pac R. Co. v. Clark

• Citation: 74 F. 362
• Parties: CANADIAN PAC. RY. CO. v. CLARK.
• Decision Date: 07 April 1896
• Court: U.S. Court of Appeals — Second Circuit

74 F. 362

CANADIAN PAC. RY. CO. v. CLARK.

United States Court of Appeals, Second Circuit.

April 7, 1896

In Error to the Circuit Court of the United States for the District of Vermont.

This was an action by Samuel O. Clark against the Canadian Pacific Railway Company for injuries to his person, and to his horse and sleigh. There was a verdict for plaintiff, and a motion for a new trial was denied. 69 F. 543. Defendant brought the case on error to this court, which affirmed the judgment Wallace, Circuit Judge, delivering the principal opinion. See 73 F. 76.

CONTRIBUTORY NEGLIGENCE-- PLEADING AND PROOFS.

A defendant may prove contributory negligence although he has not expressly set it up as a defense in his answer. Per Lacombe, Circuit Judge, concurring. See 73 F. 76.

Frank E. Alfred and Joel C. Baker, for plaintiff in error.

A. B Brown and W. D. Wilson (Wilson & Hall and Rustedt & Locklin on brief), for defendant in error.

LACOMBE Circuit Judge (concurring).

I entirely concur in this opinion. The system which makes the absence of contributory negligence a part of plaintiff's case, and does not require the defendant to answer the negligence imputed to him unless it appears prima facie, at least, that the plaintiff was himself in the exercise of proper care, may be the more scientific one. It is the well-settled law in New York (Cahill v. Hilton, 106 N.Y. 512, 13 N.E. 339); and it was the rule in that state when the cases of Button v. Railroad Co., 18 N.Y 248; Johnson v. Railroad Co., 20 N.Y. 65, and Wilds v. Railroad Co., 24 N.Y. 430, were decided which three cases are, curiously enough, cited by Mr. Justice Hunt in Railroad Co. v. Gladmon, 15 Wall. 407, as supporting the exact converse of what they hold. But this question as to the burden of proof is no longer an open one in the federal court. The supreme court has repeatedly reaffirmed the rule laid down in Railroad Co. v. Gladmon that 'the want of care and caution (on the part of plaintiff), or 'contributory negligence,' as it is termed, is a defense to be proved by the other side. ' Railroad Co. v. Horst, 93 U.S. 291; Hough v. Railroad Co., 100 U.S. 213; Farlow v. Kelly 108 U.S. 288, 2 Sup.Ct. 555; Northern Pac. R. Co. v. Mares, 123 U.S. 710, 8 Sup.Ct. 321; Coasting Co. v. Tolson, 139 U.S. 551, 11 Sup.Ct. 653; Railroad Co. v. Volk, 151 U.S. 75, 14 Sup.Ct. 239; Railroad Co. v. Lowell, 151 U.S. 209, 14 Sup.Ct. 281. None of these cases, however, go to the extent of holding that defendant cannot prove contributory negligence unless he has expressly set it up as a defense in his answer; and a court to which it may be presented as an open question, in the absence of a statute or constraining authority, should be slow to adopt any such practice. A system of procedure which denies to defendant the right to avail of plaintiff's contributing negligence unless he has alleged it in his pleading is inherently vicious. There are many ...