WATKINDS V. SO(j1'}'HERN PAC. R. CO.
the fault ofthe other had left her. The Nellie, 2 Low. 494. The libelant's boat, after the accident, Was found to be leaking. She was not then quite loaded. Her loading was afterwards completed with a full cargo, as I understand, as though no injury had happened; and' she was thereupon taken across the river to form one of a tow which she had previously been intending to join on a trip to New York. She went down with the tow, and, when within 12 miles of the city,the ice lifted the upper part from the bottom, and the boat and cargo thereby became a total loss. The evidence shows that she could not be docked with her' cargo in her; and the cargo, it is said, could not be transferred so as to be of much, if any, value. The evidence on this last point is not satisfactory. The boat was 24 years old, evidently weak, and she started upon her trip without examination, and leaking badly. I do not think the captain's conduct in this. case CQmes fairly within the rule that charges upon the wrong-doer the reasonable efforts made to save an injured vessel. It is very improbable that the trip to New York was made with the view to save the vessel or cargo; for, if that had been the only object; the captain would not have increased the risk by taking more. aboard after the.accident. Just how much more ice put aboal'd)s .not stated; b\ltas the boat completed about 125 miles of her trip before foundering, after being fully loaded,. it is fair to assume that if she had taken· aboard, ,only a small amount less. she would completed her trip. The completion of the loading, the lack of exam,., ination and of any effort to stop .the leak, all lead to the sa.me conclusion. FroPlAhe moment the boat started' cODstfmt efforts at the pump were necessary. The boat was very old and weak, and plainly unseaworthy. A Mat of ordinary strength would not have separatell as this boat did. It was not a case where instant action was necessary to Btlve boat or cargo from destruction. The captain was not, I think, entitled, under such circumstances, to throw the risk Of losing the boat and carg;o during a trip of 140 miles, on the steamer, without ber, and without examination. I allow $400, the estimated damage to the boat by the injuries to berbottom. Having been lost in the tain's subsequent venture, there is nothing to be added for demurrage. Decree for $400, with interest from August 16, 1887, and costs.
(DiBtrict Oourt, D.Oregon. :May 15, 1889.)
Contributory neglig-ence is a defense which' necessarily impUesilegUgence on the part of the defendant, and,is. tl;J,erefol.'Q a p1eao£ con£ession.ndavoidance.
nies that the injury was caused by the negligence of the defendant, and al· leges that it was "wholly" caused by the negligence of the plaintiff, is not such a defense, but only a denial of the negligence of the defendant, and needs no reply. . . 8.
Where the plaintiff alleges in his complaint that the injury which is the subject of the action was not caused by any fault or negligence on his part, and the defendant, instead qf moving to strike out the allegation, specifically denies the same, an issue Is formed on the question of contributory negligence, and no further pleading is necessary thereabout.
SAME-MoTION FOR JUDGMENT ON PLEADINGS.
Amotion for a judgment on the pleadings will not be allowed, under section 78, Compo 1887, unless the defense is admitted by the -failure to reply thereto, and the matter contained therein is not otherwise contested or put in issue in the pleadings, and is sufficient to justify the judglllent.
(Syllabu8 by the CQurt.)
On: motion for judgment on the
John M. Gearin, for plaintiff· . Earl C. Bronaugh, for defendant·.
J. This action is brought to recover damages for an injury
to the person of the plaintiff; alleged to have been caused by the negli-
gence of the defendant in failing to keep a light on the way or approach to its railwa.y station at Lebanon; Linn county, Or. The action was brought in the state circuit court for said county, and removed here by the defEmdant, a corporation formed under the laws of Kentucky, the plaintiff being a citizen of Oregon. In his complaint the plaiIltiff alleges that the injury occurred "through no fault or negligence" of his. .In its answer the defendant" denies that through no fault or negligence Of' plaintiff" he was injured. as alleged in the complaint. The answer also contains a. statement erroneously styled" a further and separate defense," in which it is alleged that the defendant used due care l!l.nd diligence in the matter complained of, and that the alleged injury to the plaintiff was not caused by. any negligence on the part of the defendant, but was" wholly owing to the negligence and fault of the plaintiff himself." No reply having: been filed to this so-called "defense," the defendant court for "judgment against the plaintiff on the pleadings, and moves for want of a reply, and for costs and di:;,bursements." The motion was first made without notice to tlIe adverse party, but the court refused to hear it until due notice of the same was given, which was done. It is made under section 78" Compilation 1887, which provides that" if the answer contain a statement of new matter, constituting a defense, and the plaintiff failsta reply thereto, the defendant may move the court for such as he is entitled to on the pleadings." this answer. contains "new matter," constiThe motion assumes tuting thedeferise of contributory negligence. Contributory negligence is a Ilefense to this action, but it is only a defense. And therefore the plaintiff need not allege nor prove that he was withoutfault in the premises. Railway Co. v. Gladman, 15 Wall. 401;
". SOUTHERN PAC. B,. CO.
Knaresborough v. Mining 00., 8 Sawy. 446; Holmes v. Railway Co., 6 Sawy.289; COnroy v. Construction ,co., 10 Sawy. 630, 28 Fed. Rep. 71; Grant v. Baker, 12 Or. 329, 7 Pac. 318; Ford v. U'1natilla Co., 15 Or. 813, 16 Pac. Rep. 33. But the plaintiff having chosen to allege in hiE' complaint that the injury occurred without fault or negligence on his part, and the defendant having chosen to meet this allegation with a specific denial of the same, there is an issue of fact formed on this question which must be tried as such before a judgment can be given in the. case. The statute in a judgment on the pleadings in case no replY'is made toa defense, presupposes that the facts constituting such defense are not elsewhere or put in issue in the pleadings; in that they "new matter." . Admitting, then, for the sake of the argument, that the defense of contributory negligence is well pleaded, and uncontroverted by a reply, stW the same matter is put at issue by an allegation of the complaint, and a denial of the answer. The court cannot give judgment for the defendant on the pleadings, unless, when taken as a whole, the fact orfactsnecessary to the of such a judgment are thereby admitted. . True, the defendant contends that the fact of contributory negligence. as alleged in this defense, is admitted, because no reply has been fileJ thereto. But the plaintiff had already alleged that he was not guilty of contributory negligence, and the defendant, by denying the same, took. issue with him thereon. An issue'having been reached on thisquestion between an. allegation of the com plaint and a denial of the answer, there is no necessity for any further pleading thereabout. I know it may be said that tbis allegation, not being necessary to the statement of the plaintiff's case. is immaterial, and the issue taken upon it. is so likewise. But it anticipates and contr.overts a pO!lSible defense to' the action; and the defendant having accepted the controversy in this form by taking issue on the allegation, I do not think it can be heard to say the issue is an immaterial one, and ought on this motion to be disregarded·. But this defense is not a good plea of contributory negligence, and is nothing more than another" denial" of the that the injury was not caused by any fault or negligence on his part. Contributory negligence-negligence on the part of the plaintiff-necessarily implies negligence on the part of the defendant. It implies that the concurring negligence of the two parties caused the injury, and but for this concurrence it would not have occurred. Contributory negligence is therefore a defense which confesses and avoids the plaintiff's cause of action as stated in the complaint. 4 Amer· & Eng. Cyclop.Law, 17, 19; Railway Co. v. Thoml18, 79 Ky. 164. This defense confesses nothing, but avers that the defendant was not guilty of negligence, and that the injury sustained by the plaintiff waf> wholly oWing to his own negligence. As I have said, it amounts to nothing more or less than another denialof the allegation in the complaint that the injury in question was
not caused by the theplaibtHt. ""Hoffman v. GortUm, 15 Ohio St. 215. Thisbeingthe character of the pleading, it needed
no reply', and might properly ha;ve been stricken from the answer as redundant. The m.otion is denied. ' ,
(Jowrl, ,8. D., N_, York-April 18. 18891).
Where there are two distinct provisions of a tarl! aCt, either'of which mfghl apply to an imported article; ,it must be held dutiable under that one of the two ,ia Jqpllt IIpepiJ;lp in ita character.
, " Where no aufficient e.idence Is giVen upon the trial of an action that words in a statute im,posing"du,tiea on, imp,orte"d, artic,les have a,ny, special or pe,culiar meaning I.n ,"jie ,they mW't be interpreted according to their J d ,.. ,' , common
Proof that foreign fruita. presetvellin sugarsyrtip anllmolasses. which t , come .in "sllI1!tlcles oflmportatiQu; and,which plaintiff has deaItin, come,gen: p\'Pkagllll, "nd dried do not , ' handle frufta preserved in Ilugar in air-tIght PSC.kllges. isuot sufficient toeatablblh a, trade meaning of the 1:8r)11 "fruits preaerved in 'sugar. "
.. 8.urE-EvmENcE Oll'
dried, is ,properly .dutiabloat 81i per cent.' 'all palorem. 'iIqder. tbeprovision in Schedule .G of the tariff act of 'March'8,l88S,'Jfor "conHltfi'. or fruitS preserved in sugar. spirits. syrup, or,molasses, not 0tMrWise1JPocllled or proviclejiforin this act," and is notl , i Ilnde,rthe provillion in the free list of, the same act for ''fruits ". green, or dried. nohpeciall1 or provided for in this acto"
i. 8.,. ci,trOI1-
Leiw; Ori. motion for direction of verdict. ' Action .agaiIl$t a former collector of the port of New York, to 1'ecover duties paid upon certain "oandiiedcitron" imported by plaintiff. The goods in question were'showrl'by;evidence upon the trial to, be the fruit 'i}f:the citron tree, boiled in.8ugMl,an9. then dried and packed for shipment. The collector hadJempted35per cent. duty on the goods the provision in Schedule G ofthe tariff act of March 3, 1883, for "comfits; sweetmea:t!!, or fruits preserved in sugar, spirits, syrup,or molasses, flDot speCified or provided for in this act. " The importer claimed -that the goods were. eJl;eitIptfromduty by virtlie of a provision in the free list of the same act for" fruits. green, ripe, or dried, not specially ,enumerated or provided .Evid ence was given on behalf of the plain.tHfthat all brokel'A and dealers in foreign dried fruits dealt in the article in question; :that in trade .papersand mercll.ntileprioes currentitwaa aliwaysclassed among. foreign dried! fruitsj that plaintiff had boughtimd 'csoldfruitspreservedin.sugar,i.snnp, spirits; and molasses, which were done up in air-tight packages, and that dealers iIi dried fruits did not -deaJ,in fruitspreserved"inisngaror syrup which came in air-tight packi,'.ag.es.. 11 ;iJi :!'.: ;uJ .i. _,.'