91 N.W. 63 | N.D. | 1903
This action was brought to recover damages for a personal injury which plaintiff received while unloading a threshing engine from a flat 'car at Park River, N. D. The defendant is a manufacturer of such engines, and has an agency at Park River, at which the defendant’s engines are kept for sale; and at the time in question one J. T. Smith was in charge of the agency, and was in the defendant’s employ, and as such employe Smith had the supervision of the matter of unloading the engine in question. It appears that plaintiff had, previous to the arrival of the engine at Park River, ordered this or a similar engine of the defendant, and, when the engine reached Park River, Smith notified the plaintiff of the fact, and requested him to assist in unloading the same from the flat car. Plaintiff, upon such notice, and to expedite the delivery of the engine, did assist in unloading the engine, and in doing so was injured; and plaintiff alleges in his complaint that his injuries resulted from the negligence of Smith while acting as the agent of the defendant, in unloading- the -engine. At the close of the testimony, and at defendant’s request, special findings, eight in number, were submitted to the jury by the trial court, and all of said findings were found for the palintiff except the seventh, which was found for the defendant, and which is as follows: “Was the plaintiff, Pengilly, guilty of any want of ordinary care which contributed proximately to his injury?” The plaintiff moved upon the minutes of the court and upon affidavits to set aside the special verdict and for a new trial of the action. The affidavits embraced evidence alleged to be newly discovered, and relating to the matter of the contributor}' negligence of the plaintiff. The grounds of the motion, as stated in the notice of intention, are as follows: “(i) Newly discovered evidence material to the plaintiff, and which he could not
It will be noticed that the plaintiff, in moving to vacate the verdict and for a new trial, is assailing the seventh finding of the jury, and that only. The notice of intention, by its terms, attacks the seventh finding upon two grounds, viz.: First, that there is no evidence whatever that the plaintiff, by his own negligence, contributed to the injury of which he complains; and, second, that the question of plaintiff’s contributory negligence “was not in issue upon the trial.” We will consider these questions in their inverse order. An inspection of the complaint shows that the plaintiff, in stating his cause of action, uses the following language: “The plaintiff further alleges that it was by or through no fault, negligence, or carelessness on his part that he met with and sustained such injury.” The answer embraces a general denial of the allegations of the complaint, but contains no specific denial of the particular averment of the complaint above quoted. Upon this state of the pleadings it is contended b}r counsel for the plaintiff that the question of plaintiff’s negligence was not involved in the controversy, and, .as they argue, the jury, in finding upon that question, have introduced an issue which is extraneous, and as such should be disregarded by this court. This contention is sought to be supported by the argument that the averment in the complaint to the effect that plaintiff was free from negligence in the premises was superfluous, and hence that the same was not a material averment of fact, and therefore that the general denial contained in the answer did not raise any issue of fact upon the matter of plaintiff’s contributory negligence. We agree with this contention of • plaintiff’s counsel in so far as they claim that it was unnecessary to insert in the complaint the averment which is above quoted. While there is a conflict of authority upon the question, the point has been settled in this state. See Gram v. Railroad Co., 1 N. D. 253, 46 N. W. Rep. 972. In this state the question of plaintiff’s contributory negligence in this class of cases is a matter of defense, and the same forms no part of the plaintiff’s case, and hence need not be referred to in the complaint. In this state, therefore, the insertion in the complaint of a statement that the plaintiff’s negligence did not contribute to the injury is bad pleading in this: that it violates a well-settled rule of Code pleading forbidding the anticipation of defensive matter in a complaint. But in this case it becomes immaterial to inquire whether plaintiff’s negligence was in issue under the pleadings as they were framed. Whether in issue or not, technically speaking, the issue of contributory negligence was submitted to the jury by
But the motion for a new trial rested upon affidavits, as well as upon the evidence adduced at the trial. The plaintiff’s affidavits were five in number, and two were submitted by the defendant. Plaintiff claims that the evidence as embodied in his affidavits is newly discovered, and the same is now accessible, and would be produced at a second trial if such trial were granted. Plaintiff presented his own affidavit to show diligence and as explanatory of the fact that the new evidence, as stated in h'is affidavits, was not offered at the trial. We think due diligence is fairly shown. A care
An examination of the grounds of the application for the order appealed from will at once develop the fact that the trial court, in disposing of the problem presented upon the application, was not governed by fixed rules of law, and in the nature of the case could
Our conclusion is that the order appealed from should be sustained, and this court will so direct.