Gay v. Winter

California Supreme Court Jul 1, 1867Published

Before: Sahdeesost

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Holding. The court held that a plaintiff is not required to provide direct affirmative proof of their own ordinary care in every negligence case; rather, in the absence of direct evidence, a jury may infer such care from the circumstances, the plaintiff's habits, and the natural instinct of self-preservation.

Issues

Whether a plaintiff must provide direct affirmative proof of their own ordinary care to avoid a nonsuit in a negligence action.
Whether the trial court erred in granting a nonsuit when the plaintiff could not provide direct testimony regarding the decedent's conduct at the time of the accident.

Disposition. reversed

Quotations verified verbatim against the opinion

“In the absence of any direct proof we are of the opinion that the jury are at liberty to infer ordinary care and diligence on the part of the plaintiff from all the circumstances of the case—his character and habits and the natural instinct of self preservation.”

“The Court erred, however, in nonsuiting the plaintiff.”

Synopsis

Pleading—Denials in Answer.—Before entering on the trial of an action, the plaintiff is entitled to an explicit denial of the material allegations of the complaint, or an admission of their truth, either by direct statement, or by silence; and it is the duty of the Court to enforce this right.

Idem—Mode of Testing.—Where the answer contains no new matter, and the plaintiff claims that all the denials are bad, he may test their sufficiency by a motion for judgment upon the pleadings.

Idem.—If some of the denials of an answer are deemed good, and the others bad, the plaintiff may move to strike out the latter. This practice is justified by the fiftieth section of the Practice Act. Answers consisting of denials, which do not explicitly traverse the material allegations of the complaint, are sham and irrelevant within the meaning of the statute.

Puneral Expenses.—In an action under the statute for causing by wrongful act the death of a person, funeral expenses are not recoverable, except as special damages, if recoverable at all, and must be specially pleaded.

Variance between Pleading and Proof.—In an action under the statute for causing by wrongful act the death of a person, where the allegation of the complaint was that defendants owned, as tenants in common, the entire block, in front of which the accident occurred, and the proof was that they owned it in distinct parcels in severalty, the variance was immaterial.

Negligence—What Sufficient Proof of.—To maintain an action for causing by wrongful acts the death of or injury to a person, two things must be shown : 1st. An obstruction in the road by the fault of the defendant; 2d. No want of ordinary care on the part of the plaintiff. The gravamen of the action is the negligence of the defendant, and plaintiff cannot recover where it appears that the negligence of the deceased or person injured contributed in any degree to the death or injury sustained.

Idem.—But in cases where the negligence of the defendant is affirmatively shown, and there is no proof of the conduct of the deceased or person injured, the jury are at liberty to infer ordinary care and diligence on his part, taking into consideration his character and habits, as proved, and the natural instinct of self-preservation.

Idem.—In such actions, if the plaintiff makes a case which does not charge the deceased or the person injured with negligence, the case should be permitted to go to the jury, under appropriate instructions.

By the Court, Sahdeesost, J.: Before entering upon the trial of an action, it is of the utmost importance that all doubt, if such there be, as to what the issues are should be removed. It is alike important to both parties and to the Court. The plaintiff" is entitled to an explicit- denial of the material allegations of the complaint or an admission of their truth, either by direct statement or by silence. He is not bound to act at his peril and judge for himself of the sufficiency of the denials, and then stand or fall according to the subsequent judgment of the Court, nor is he bound to treat bad denials as good in order to avoid an adverse decision upon them at some subsequent stage of the proceedings. His right to an explicit denial or admission is a substantial one, secured to him not only by the express provisions of the statute, but by the plainest principles of logic which under[161]lie the science of pleading. If this right is not voluntarily conceded hy the defendant and his answer framed accordingly, it is the duty of the Court, in some way, to enforce the right.

It is quite as important for the defendant and the Court as the plaintiff, that the issues should he settled in advance of the trial. While the defendant is hound to make his denials sufficient in the first instance, and cannot justly complain of adverse consequences if he does not, yet if they are defective and the defects are the result of inattention or mistake and not design, his position is strengthened by a timely construction of his answer and an opportunity to amend it. As to the Court, such an adjustment of the issues contributes to the dispatch of business and the orderly administration of justice by the consequent avoidance of all controversies as to the issues during the progress of the trial, and of all embarrassment in ruling intelligently upon the relevancy of testimony.

Where the plaintiff claims that all the denials are bad, if the answer contains ■ no new matter, he may test the sufficiency of the denials by a motion for judgment upon the pleadings, or by motion to strike out the answer on the ground that it is sham. If some of the denials are deemed good, and the others bad, he may move to strike out the latter. We consider that this practice is authorized by the fiftieth section ’ of the Practice Act, which provides that “ sham and irrelevant answers and defenses, and so much of any pleading as may be irrelevant, redundant, or immaterial, may be stricken out, upon motion, upon such terms as the Court, in its discretion, may impose.” Answers consisting of denials which do not explicitly traverse the material allegations of the complaint, we hold to be, so far, sham and irrelevant within the meaning of the statute. (The People v. McCumber, 18 N. Y. 315.) This course, however, was not adopted, and perhaps the Court did not err in

Gay v. Winter

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