Stephens v. City of Eldorado Springs

SEPARATE CONCURRING OPINION.

STURGIS, J.

I concur in the opinion herein, and more particularly because the answer contains a good plea of contributory negligence unless attacked before trial.

The answer, touching this question, is as follows: “And defendant says that plaintiff having knowledge of the actual condition of 'said sidewalk at the time of his alleged injury, and of any unsafe or dangerous condition of the same, voluntarily assumed all risk of injury incident to using the same; and that whatever injuries plaintiff received in passing over said sidewalk were the direct result of his own negligence and carelessness contributing thereto as the proximate cause thereof.” It is said that this is not a sufficient plea of contributory negligence. We are cited to Ramp v. Railroad, 133 Mo. App. 700, 114 S. W. 59; Cain v. Wintersteen, 144 Mo. App. 1, 128 S. W. 274; and Borders v. Met. St. R. Co., 168 Mo. App. 172, 153 S. W. 72, as sustaining this contention. In the Borders case, supra, the answer is not set out and it is merely said not to raise this issue under the holding in the Ramp case, supra. In both the Ramp and Cain cases, supra, the answers are different than here and in each charge in effect that plaintiff’s injuries were due solely to his own negligence; while here, the answer plainly charges that plaintiff’s negligence contributed to his injury. An answer more objectionable in this respect than this one is held good in Harmon v. Railroad, 163 Mo. App. 442, 449, 143 S. W. 1114, and in Peterson v. Railroad, 211 Mo. 498, 519, 111 S. W. 37. I think we ought to hold in this case, as we did in Wallower v. Webb City, 171 Mo. App. 214, 222, 156 S. W. 48, that such an answer is sufficient to raise this issue unless attacked by a motion to make same more specific. It is distinctly held in Conrad v. De Montcourt, 138 Mo. 311, 325, 39 S. W. 805, that: “A general charge of neglig'ence is good as a basis for proof unless objected to at a proper time, before trial.” The same ruling is made in Johnson v. Met. St. R. Co., 104 Mo. App. 588, 591, 78 S. W. 275, and cases there cited. There was no objection made to the plea of contributory negligence on plaintiff’s part as contained in this answer, except by objection to the evidence during the trial. That is not a proper way to challenge the- sufficiency of the plea.