Bowker v. Donnell
226 F. 359
S.D.N.Y.
1915
Check Treatment
DACOMBR, Circuit Judge.

[1,2] Plaintiff relies on Szymanski v. Contact Process Co., 82 Misc. Rep. 46, 143 N. Y. Supp. 604. In that case the statute under which the action was brought expressly provided that:

‘•Contributory negligence of the injured person shall be a defense, to be so pleaded and. prmed by the defendant.”

This action is not brought under that statute, and although, contrary to the rule in the state courts (of New York), contributory negligence is in the federal courts a defense, the burden of establishing which is on the defendant, he need not plead such defense, but may avail of it, whether it is made out at the trial by plaintiff’s evidence or by his own. Plaintiff also refers to Havholm v. Whale *360Creek Iron Works, 159 App. Div. 578, 144 N. Y. Supp. 833, and Ithaca Trust Company v. Marion, 163 App. Div. 56, 148 N. Y. Supp. 775.

Counsel cites the following federal authorities: Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Washington, etc., Co. v. Harmon’s Administrator, 147 U. S. 571, 13 Sup. Ct. 557, 37 L. Ed. 284; Texas, etc., Co. v. Volk, 151 U. S. 73, 14 Sup. Ct. 239, 38 L. Ed. 78; Chicago, etc., Co. v. Price, 97 Fed. 423, 38 C. C. A. 239; Armour & Co. v. Carlas, 142 Fed. 721, 74 C. C. A. 53; Jefferson Hotel Co. v. Warren, 128 Fed. 565, 63 C. C. A. 193; O’Hara v. Central R. R. of N. J., 183 Fed. 739, 106 C. C. A. 177; Ward v. Dampskibselshabet (D. C.) 136 Fed. 502; Fitchburg R. R. v. Nichols, 85 Fed. 945, 29 C. C. A. 500. None of these sustain the proposition that a defendant must plead contributory negligence of plaintiff in order to avail of it as a defense..

The Court of Appeals for the Second Circuit in Long Island R. R. v. Darnell, 221 Fed. 194, referring to a charge by the trial jiidge that any question of plaintiff’s contributory negligence was out of the case, because defendant had not pleaded it, said:

“This was error. The rule in this circuit was laid down in Canadian Pacific R. R. v. Clark, 73 Fed. 76, 74 Fed. 362, 20 C. C. A. 447 (1896). Contributory negligence is a defense, the burden of proving which is on the defendant; but it is a defense which defendant can avail of without pleading it”

In the case cited in the above quotation it was said:

“A system of procedure which denies to defendant the right to avail of plaintiff’s contributory negligence unless he has alleged it in his pleading is inherently vicious. There are many cases where the fact that plaintiff’s negligence was the real cause of the accident is wholly unknown until the trial. It is locked up in plaintiff’s breast, and only made manifest under the stress of cross-examination. Under such circumstances, how could an honest defendant have alleged it in his answer? He had no knowledge or information whatsoever warranting a belief sufficient to authorize his verifying an answer which alleges that plaintiff was negligent. And how unjust to deprive him of a meritorious defense merely because he did not and could not have learned of it until the trial. It may be suggested that the trial court has the power to allow an amendment on the trial; but that power rests in the court’s discretion, and it does not seem to be a very sensible system which contemplates amendment ás a necessary essential of its usefulness.”

[3] The same reasoning applies here. Since the defendant has pleaded plaintiff’s contributory negligence, it may be assumed that there is some act of plaintiff which he expects to show as evidence thereof. But by setting forth that act as his specific particular of negligence he debars himself from availing upon the trial of other acts which plaintiff’s witnesses may, for the first, make known, unless he can persuade the trial judge practically to disregard the bill of particulars.

The motion is denied.