Thompson v. North Missouri Rail Rd. Co.

• Decision Date: 31 January 1873
• Citation: 51 Mo. 190
• Parties: JOHN R. THOMPSON, Appellant, v. THE NORTH MISSOURI RAIL ROAD COMPANY, Respondent.
• Court: Missouri Supreme Court

51 Mo. 190

JOHN R. THOMPSON, Appellant,

v.THE NORTH MISSOURI RAIL ROAD COMPANY, Respondent.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Randolph County Circuit Court.

R. T. Prewitt, for Appellant.

It is not necessary to allege that the plaintiff had taken due care, that is matter of defense. Shearm. & Redf. on Negligence, 46, § 44 and note 2; 2 Chitty Pleadings, 647, et seq., for forms of Declaration.

J. N. Litton, for Respondent.

The burden of proof is on the complainant to prove, that he himself was in the use of ordinary care and without fault at the time, directly contributing to the injury complained of. Warner vs. N. Y. Cent. R. R. Co., 44 N. Y., 470; Curran vs. Warren Co., 36 N. Y., 155; Spencer vs. U. & S. R. R., 5 Barb. N. Y., 338; Wilds vs. H. R. R. R. R., 24 N. Y., 432; Murphy vs. Deane, 101 Mass., 455; Counter vs. Couch, 8 Allen Mass., 436; Lane vs. Crombie, 12 Pick., 177; Ind. R. R vs. Keely, 23 Ind., 133; Fox vs. Town of G., 29 Conn., 209; Park vs. Obrien, 23 Conn., 345; Chamberlin vs. Milwaukie R. R., 7 Wis. 425; Dresler vs. Davis, 7 Wis., 527; Greenleaf vs. R. R., 29 Iowa, 47; C., B. & Q. R. R. vs. Hazzard, 26 Ill., 376; Aurora Br. R. R. vs. Grimes, 13 Ill., 587; 16 Ill., 300, 570; Moore vs. R. R., 4 Zabriskie, 269; Moore vs. Abbott, 32 Maine, 52; Owings vs. Jones, 9 Md., 108; Ficken vs. Jones, 28 Cal., 626; Hyde vs. Jamaica, 27 Vt., 465; Moore vs. Shreveport, 3 La., Ann., 646.

This is no less the law of this state than elsewhere.

Fitch vs. Pacific R. R., 45 Mo., 327; McKeon vs. Citizens' R. R., 43 Mo., 405; Huelsenkamp vs. R. R., 34 Mo., 45; Meyer vs. P. R. R.; 43 Mo., 523; Boland vs. R. R. Co., 36 Mo., 484; Smith vs. City of St. Joseph 45, Mo., 451; Shultz vs. P. R. R. Co., 36 Mo., 32; Liddy vs. St. L. R. R., 40 Mo., 506; Meyer vs P. R. R., 40 Mo., 158; O'Flaherty vs. R. R., 45 Mo., 72.

WAGNER, Judge, delivered the opinion of the court.

In substance, plaintiff alleged in his petition that he was a passenger on the defendant's road, and that in getting off of the cars, through the carelessness and negligence of the defendant and its agents, he was injured, for which he asks damages. The Circuit Court sustained a demurrer to the petition, because there was no averment that the plaintiff at the time was exercising due care and was himself without negligence contributing to the injury. The sole question is whether it was necessary to make this allegation, or whether it was matter which properly devolved on the defendant to set up in the answer, and rely upon in defense.

The question as to burden of proof in respect to plaintiff's freedom from negligence, and as to whether he should make the affirmative averment, that he exercised proper care and was free from negligence, is new in this Court, and is involved in uncertainty by the conflicting and evasive decisions of the Courts of other States. While some Courts hold that he must allege and affirmatively establish that he was free from culpable negligence contributing to the injury, others hold that his negligence is matter of defense, of which, the burden of pleading and proving rests upon the defendant.

In my view the latter is the correct doctrine. Negligence on the part of the plaintiff is a mere defense, to be set up in the answer and shown like any other defense, though of course it may be inferred from the circumstances proved by the plaintiff upon the trial. It seems to be illogical and not required by the rules of good pleading, to compel a plaintiff to aver and prove negative matters in cases of this kind. In an ordinary complaint upon negligence, it is not necessary to aver that the plaintiff has taken due care. It is true the action may be defeated by...