New Castle Bridge Company v. Doty

• Decision Date: 05 January 1906
• Docket Number: 5,586
• Citation: 76 N.E. 557,37 Ind.App. 84
• Parties: NEW CASTLE BRIDGE COMPANY v. DOTY
• Court: Indiana Appellate Court

76 N.E. 557

37 Ind.App. 84

NEW CASTLE BRIDGE COMPANY v. DOTY

No. 5,586

Court of Appeals of Indiana

January 5, 1906

From Morgan Circuit Court; Joseph W. Williams, Judge.

Action by Arthur W. Doty against the New Castle Bridge Company. From a judgment for plaintiff, defendant appeals. (On transfer see 168 Ind. .).

Transferred to Supreme Court.

E. E Stevenson and O. Matthews, for appellant.

Charles F. Remy, John W. Donaker and Renner & McNutt, for appellee.

ROBY C. J. Wiley, Myers and Robinson, JJ., concur. Black, P. J., and Comstock, J., absent.

OPINION

ROBY, C. J.

Action to recover damages on account of alleged personal injuries. Verdict and judgment for plaintiff. One ground stated in the motion for a new trial is based upon the giving of the following instruction: "(8) I instruct you that as the law now exists in Indiana the plaintiff is not bound to prove that he was free from fault in receiving his injuries. The question of contributory negligence is now a matter of defense, and the burden is cast upon the defendant to prove by a fair preponderance of the evidence that the plaintiff, Arthur W. Doty, was guilty of some act or acts of negligence that contributed to his injuries, or that he did not use such care or caution as a reasonably prudent person would have done, under the circumstances, before this action can be defeated for contributory negligence alone, if he has otherwise proved his case."

Since February 17, 1899, contributory negligence on the part of the plaintiff is a matter of defense. Acts 1899, p. 58, § 359a Burns 1901. That the defense may be made under a general denial, by legislative permission, does not change its affirmative character. The plaintiff makes his case when he proves negligence on the part of the defendant and resulting damage to him. § 359a, supra; Pittsburgh, etc., R. Co. v. Lightheiser (1904), 163 Ind. 247, 263, 71 N.E. 218.

The issue must be proved by the party who states an affirmative. One test is: which party would prevail if no evidence, or no more evidence, were given? Meikel v. State Sav. Inst. (1871), 36 Ind. 355, 358; Lindley v. Sullivan (1893), 133 Ind. 588, 32 N.E. 738; Bailey, Onus Probandi, 1. If the plaintiff introduces evidence tending to show negligence by the defendant and resulting damage, he will recover if no more evidence is given, so that the instruction under consideration is logically correct.

The cases are numerous in which the burden of proof has been held to be upon the defendant who relies upon an affirmative defense. The instruction under consideration would be strictly accurate in a case where the defendant was relying upon payment, fraud, failure of consideration, duress, estoppel, illegality, release, tender, etc., as has been many times ruled and never denied by the Indiana Supreme or Appellate Courts. If an exception to this well-defined principle is to be made, where the affirmative defense relied upon consists of a charge of negligence against the plaintiff, there must be some reason for such exception, and it is not believed that any such reason can be stated or found. The question is not a new one. While the decisions of the courts of sister states and of the United States are not authoritative in the strict sense of the term, they possess great persuasive power, and we would be loath to declare a rule conflicting with that universally laid down by them.

Contributory negligence has always been treated as a defense in the federal courts. The exact question under consideration in this case, when presented to the United States Supreme Court, was disposed of as follows in Indiana, etc., R. Co. v. Horst (1876), 93 U.S. 291, 23 L.Ed. 898: "The instruction contained two elements: (1) That the burden of proof rested on the defendant. This was correct. Washington, etc., R. Co. v. Gladmon [1872], 82 U.S. 401, 15 Wall. 401, 21 L.Ed. 114. (2) That it' meaning contributory negligence, could not avail the defendant, unless established by a preponderance of the evidence.' This, also, was correct. The court did not say that if such negligence were established by the plaintiff's evidence, the defendant could have no benefit from it, nor that the fact could only be made effectual by a preponderance of evidence, coming exclusively from the party on whom rested the burden of proof. It is not improbable that the charge was so given by the court from an apprehension that the jury might without it be misled to believe that it was incumbent on the plaintiff to show affirmatively the absence of such negligence on his part, and that if there was no proof, or insufficient proof, on the subject, there was a fatal defect in his case. It was, therefore, eminently proper to say upon whom the burden of proof rested; and this was done without in anywise neutralizing the effect of the testimony the plaintiff had given, if there were any, bearing on the point adversely to him. We think the instruction was properly expressed. If there was any ambiguity unfavorable to the defendant, it was the duty of his counsel to bring it to the attention of the court, and ask its correction." See Washington, etc., R. Co. v. Harmon (1892), 147 U.S. 571, 13 S.Ct. 557, 37 L.Ed. 284; Washington, etc., R. Co. v. Gladmon, supra; Inland, etc., Coasting Co. v. Tolson (1891), 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Watkinds v. Southern Pac. R. Co. (1889), 14 Sawy. 30, 38 F. 711, 4 L. R. A. 239; Western Union Tel. Co. v. Eyser (1873), 2 Colo. 141, 154; Sanders v. Reister (1875), 1 Dak. 151, 172, 46 N.W. 680; Hopkins v. Utah, etc. R. Co. (1887), 2 Idaho 300, 13 P. 343; Baltimore, etc., R. Co. v. Whittington (1878), 71 Va. 805, 30 Gratt. 805; Norfolk, etc., R. Co. v. Burge (1887), 84 Va. 63, 4 S.E. 21; Southwest Improvement Co. v. Andrew (1889), 86 Va. 270, 9 S.E. 1015; Gadonnex v. New Orleans R. Co. (1904), 128 F. 805; Hemingway v. Illinois Cent. R. Co. (1902), 114 F. 843, 52 C. C. A. 477; Chicago, etc., R. Co. v. Price (1889), 97 F. 423, 38 C. C. A. 239. The instruction is therefore not only logically correct and in accord with those approved in analogous cases, but it is supported by the decisions of the courts of those...