Conroy v. Oregon Const. Co.

• Decision Date: 06 March 1885
• Citation: 23 F. 71
• Parties: CONROY v. OREGON CONSTRUCTION CO.
• Court: U.S. District Court — District of Oregon

23 F. 71

CONROY v. OREGON CONSTRUCTION CO.

United States Circuit Court, D. Oregon.

March 6, 1885

C. E S. Wood, for plaintiff.

George H. Williams and George H. Durham, for defendant.

DEADY J.

This action is brought by the plaintiff, a citizen of California against the defendant, a corporation formed under the laws of Oregon, to recover $50,000 damages, for injuries to his person sustained while in the employ of the defendant. The action was commenced on November 12, 1884. The complaint alleges that 'on or about' November 13, 1882, the plaintiff, while in the employ of the defendant as foreman of a gang of Chinese laborers, engaged in the construction of the railway known as the 'Oregon Short Line,' near Meacham's station, in this state, was ordered by George Gray, a person in the immediate charge of the business for the defendant, 'to fire certain blasts;' that in so doing he 'exercised all possible skill and precaution,' but, nevertheless, the said blast exploded prematurely and caused great injury to the plaintiff, including the loss of his sight; and that the cause of said explosion was the defective and faulty fuse supplied to the plaintiff by defendant,' of which the latter had notice. The defendant demurs, for that (1) it appears the action is barred by lapse of time; and (2) the complaint does not state facts sufficient to constitute a cause of action.

On the argument, the only point made in support of the second cause of demurrer was that it did not appear from the complaint that the plaintiff was aware of the defect in the fuse; and therefore it does not appear but that his own negligence contributed to his injury. But the allegation in the complaint, that the plaintiff used 'all possible skill and precaution' in firing the blast in question, is equivalent to an allegation that he was not guilty of any negligence in the premises. And if knowledge of the faulty condition of the fuse would, under the circumstances, make his conduct negligent, and averment that he acted prudently or not negligently, is equivalent to a denial of such knowledge. But I do not think it necessary for the complaint to contain any allegation on the subject. The law does not presume that any one is negligent; especially when such negligence may or will result in his own personal injury. True, if it appears on the trial, whether from the evidence of the plaintiff or defendant, or both, that the former was guilty of 'contributory negligence,' as it is called, he cannot recover. But he is neither bound to allege nor prove that he was not guilty of such negligence, in order to make out a case against the defendant. It is matter of defense; and if the defendant would avail himself of it, he must allege and prove it.

So much upon principle; but on authority the rule is unsettled in the state courts. In Thomp. Neg. 1176, it is stated that 18 of the states of this Union are nearly evenly divided on the question whether 'contributory negligence' is a part of the plaintiff's case or a matter of defense; while in New York and other states the decisions are irreconcilable. But the learned author, speaking for himself, says (1175) that such negligence is properly a matter of defense. Since the publication of this work the supreme court of this state appears to have decided that it is a part of the plaintiff's case; at least, there is a dictum to that effect in Walsh v. Oregon Ry. & Nav. Co. 10 Or. 253. But the decisions of the national courts, including the supreme one, are otherwise, and that is sufficient to control the action of this court.

In Knaresborough v. Belcher S. Min. Co. 3 Sawy. 446, it was held that a complaint which only alleged that the plaintiff sustained an injury from a defective platform negligently provided by the defendant was...