118 F. 653 | U.S. Circuit Court for the District of South Carolina | 1902
These are motions to make the answer and thei amended answer more definite and certain. The complaint seeks damages for personal injuries to the plaintiff’s intestate caused by the alleged negligence of defendant. It states that the intestate was a stevedore at work unloading cargo from
The mode of presenting the defense of contributory negligence used by the defendant in this case is in accordance with the practice which has prevailed in South Carolina since the adoption of code pleading, in 1870. No question has been made of it at any time,— at least, none which has been passed upon in any reported case. It is therefore res integra in this jurisdiction. But if .the practice be tested by the rules of code pleading, it will appear that it is defective. The rule governing all code pleading—complaint and answer—is that the facts relied upon be stated in a clear and concise manner, and from the facts so stated the legal conclusion is drawn. If a defendant charged with negligence relies on contributory negligence on the part of the plaintiff, he must plead it specially, and when pleaded the burden of proof is on him to maintain it. Railroad Co. v. Horst, 93 U. S. 298, 23 L. Ed. 898. It is an affirmative defense in the nature of a plea of confession and avoidance. This defense goes farther than a general denial. Under the defense of a general denial, the plaintiff must prove that the negligence of the defendant was the proximate cause of the injury. And the defendant can introduce any evidence contradicting that. He may show that his conduct in no wise contributed to the injury, and may go farther, and show that the injury was caused wholly by the act of the plaintiff. But where he sets up the defense of contributory negligence, he, in effect, says: “It may be true that I was negligent, but at the same time I can show that you also were negligent, and so notwithstanding my negligence you cannot recover.” In other'
I am of the opinion, notwithstanding the prevalence of the practice in the state of South Carolina of barely averring that plaintiff was guilty of contributory negligence, that when that practice is examined it is found erroneous; that the plaintiff is entitled to his motion that the answer, in the respects complained of, be made more definite and certain. It is so ordered.