Watkinds v. Southern Pac. R. Co.

• Decision Date: 15 May 1889
• Citation: 38 F. 711
• Parties: WATKINDS v. SOUTHERN PAC. R. CO.
• Court: U.S. District Court — District of Oregon

38 F. 711

WATKINDS v. SOUTHERN PAC. R. CO.

United States District Court, D. Oregon.

May 15, 1889

Syllabus by the Court

Contributory negligence is a defense which necessarily implies negligence on the part of the defendant, and is therefore a plea of confession and avoidance.

A statement is an answer purporting to be a defense of contributory negligence to an action for damages for an injury to the person, which only denies that the injury was caused by the negligence of the defendant, and alleges that it was 'wholly' caused by the negligence of the plaintiff, is not such a defense, but only a denial of the negligence of the defendant, and needs no reply.

Where the plaintiff alleges in his complaint that the injury which is the subject of the action was not caused by any fault or negligence on his part, and the defendant, instead of moving to strike out the allegation, specifically denies the same an issue is formed on the question of contributory negligence, and no further pleading is necessary thereabout.

A motion for a judgment on the pleadings will not be allowed under section 78, Comp. 1887, unless the defense is admitted by the failure to reply thereto, and the matter contained therein is not otherwise contested or put in issue in the pleadings, and is sufficient to justify the judgment.

John M Gearin, for plaintiff.

Earl C Bronaugh, for defendant.

DEADY J.

This action is brought to recover damages for an injury to the person of the plaintiff, alleged to have been caused by the negligence of the defendant in failing to keep a light on the way or approach to its railway station at Lebanon, Linn county, Or.

The action was brought in the state circuit court for said county, and removed here by the defendant, a corporation formed under the laws of Kentucky, the plaintiff being a citizen of Oregon.

In his complaint the plaintiff alleges that the injury occurred 'through no fault or negligence' of his.

In its answer the defendant 'denies that through no fault or negligence of plaintiff' he was injured, as alleged in the complaint.

The answer also contains a statement erroneously styled 'a further and separate defense,' in which it is alleged that the defendant used due care and diligence in the matter complained of, and that the alleged injury to the plaintiff was not caused by any negligence on the part of the defendant, but was 'wholly owing to the negligence and fault of the plaintiff himself.'

No reply having been filed to this so-called 'defense,' the defendant moves the court for 'judgment against the plaintiff on the pleadings and for want of a reply, and for costs and disbursements.'

The motion was first made without notice to the adverse party, but the court refused to hear it until due notice of the same was given, which was done. It is made under section 78, Compilation 1887, which provides that 'if the answer contain a statement of new matter, constituting a defense, and the plaintiff fails to reply thereto, the defendant may move the court for such judgment as he is entitled to on the pleadings.'

The motion assumes that this answer contains 'new matter,' constituting the defense of contributory negligence.

Contributory negligence is a defense to this action, but it is only a defense. And therefore the plaintiff need not allege nor prove that he was without fault in the premises. Railway Co. v. Gladmon, 15 Wall. 401; Knaresborough v. Mining Co., 3 Sawy. 446; Holmes v. Railway Co., 6 Sawy. 289; Conroy v. Construction Co., 10 Sawy. 630, 23 F. 71; Grant v. Baker, 12 Or. 329, 7 P. 318; Ford v. Umatilla Co., 15 Or. 313, 16 P. 33.

But the plaintiff having chosen to allege in his complaint that...