H. L. Elliott Jobbing Co. v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

Dibell, C. Action to recover damages to the plaintiff’s automobile alleged to have been caused by the negligence of the defendant. Verdict and judgment for the defendant. Plaintiff appeals. 1. The plaintiff’s automobile was damaged in a collision with a freight ear of the defendant in its yards in Minneapolis. To prove negligence the plaintiff offered to show that, in a conversation with one of its officers, the local freight agent of the defendant the day after the accident said that there would be no trouble about a settlement and that its claim agent two or three weeks later told him to get the car repaired and there would be no trouble about a settlement. Neither the freight agent nor the claim agent was present at the accident. The proposed testimony was not a part of the res gestae. There was no authority in either agent to bind the company by an admission of negligence. Conceding that so general a statement as that claimed could be construed as an admission of negligence the offered testimony was rightfully excluded. See Doyle v. St. Paul, M. & M. Ry. Co. 42 Minn. 79, 43 N. W. 787; Reem v. St. Paul City Ry. Co. 77 Minn. 503, 80 N. W. 638, 778. 2. The answer contained a general denial of the negligence alleged in the complaint and affirmatively alleged “that the damage to the said automobile was caused by the negligence of the said plaintiff and its servant and employee, and not otherwise.” The court over objection submitted the question of contributory negligence to the jury. Contributory negligence is an affirmative defense and miust be pleaded. Hill v. Minneapolis St. Ry. Co. 112 Minn. 503, 128 N. W. 831. It is urged that the allegation quoted is an insufficient averment of contributory negligence. Many eases so hold. Cogdell v. Wilmington & W. R. Co. 132 N. C. 852, 44 S. E. 618; Ramp v. Metropolitan St. Ry. Co. 133 Mo. App. 700, 114 S. W. 59; Birsch v. Citizens’ Ele. Co. 36 Mont. 574, 93 Pac. 940; Newport Turnpike Co. v. Pirmann, 26 Ky. Law Rep. 933, 82 S. W. 976; Watkins v. Southern Pac. R. Co. (D. C.) 38 Fed. 711, 4 L.R. [140] A. 239. The argument is that the allegation quoted is an averment that the plaintiffs negligence solely caused the damage, and that it negatives the negligence of the defendant charged in the complaint, though unnecessarily so since it is put in issue by the general denial, but that it is not an averment that the plaintiffs negligence contributed with that of the defendant in doing the wrong and indeed is inconsistent with such a charge. The logic of the argument is appreciated. We do not minimize its force. The rules of pleading are more a means than an end. The thing desired is that controversies may be litigated in an orderly manner and fairly to the parties. It is the long established practice in this state to receive evidence of contributory negligence under an affirmative allegation that the plaintiffs negligence was the cause, or the sole cause, of the injury. This is a common form of pleading. It is the understanding of the bar that it permits proof of contributory negligence. The plaintiff interposed a reply. It was unnecessary unless the answer alleged contributory negligence. Our practice works well and is without prejudice to a litigant. We should not disturb it merely to conform to a rule of greater logical nicety. 3. The plaintiff requested a number of instructions which were refused. The substance of them, so far as they were appropriate, was given in a comprehensive charge of the fairness of which there is no complaint. There was no error in their refusal. Judgment affirmed.