$7619. Excusing Failure to Give Railway Signals.-A plea that there was not sufficient time in which to give any signals which would have prevented a collision and injury, is not a sufficient answer to allegations of negligence in the complaint charging a failure to give signals at short intervals while passing through a city as required by law.31 An averment in an answer that a railroad company is in the habit of moving cars without giving statutory signals is not an admission that no signals were given at the time of an accident in question.32

§ 7620. Denial on Information and Belief.-Under a code provision that proof of the existence of a corporation need not be made except where the verified answer contains the affirmative allegation that the plaintiff is not a corporation, an allegation in an answer that defendant "denies any knowledge or information sufficient to form a belief" as to the alleged incorporation of plaintiff is insufficient to raise that issue.33 Under another code provision which authorizes a traverse on information and belief by a party only when the facts to be denied are not presumptively within his knowledge, an answer by a railroad company was held insufficient which alleged that it did not have sufficient information to form belief as to whether stock shipped upon its trains had been injured by the negligence of its agents in operating such trains.34

§ 7621. Admission of Presentation of Claim for Damages.-Where a complaint in an action against a city for injuries alleges the presentation on a certain date of a verified claim for damages, setting the same out, an answer that the claim described was filed admits not only that the claim described was filed, but that it was in time, duly verified, etc.35

§ 7622. Denial that Injury was Inflicted through Negligence.— An answer denying that any injury was inflicted through the carelessness or negligence or by the fault of defendant is limited strictly to a. denial of such facts, and does not amount to a denial of the damage or the injury.30

31 Highland Ave. &c. R. Co. v. Swope, 115 Ala. 287; s. c. 22 South. Rep. 174.

32 Gurley v. Missouri Pac. R. Co., 104 Mo. 211; s. c. 16 S. W. Rep. 11.

33 Martin Cantine Co. V. Warshauer, 7 Misc. (N. Y.) 412; s. c. 28 N. Y. Supp. 139; 58 N. Y. St. Rep. 569; 23 Civ. Proc. Rep. (N. Y.) 379.

4 Nashville &c. R. Co. v. Carrico, 16 Ky. L. Rep. 66; s. c. 26 S. W. Rep. 177.

25 Durham v. Spokane, 27 Wash. 615; s. c. 68 Pac. Rep. 383.

Se South Covington &c. St. R. Co. v. Herrklotz, 104 Ky. 400; s. c. 47 S. W. Rep. 265.

§ 7623. Plea of Agreement Not to Sue.-A special plea that plaintiff was, subsequently to the injury and prior to the commencement of the suit, employed on the faith of an agreement not to sue for damages for the injury, is defective where it fails to allege what services were paid for, or how much was paid, or the party with whom the agreement was made. Such a plea should definitely disclose the nature of the defense aimed at; whether accord and satisfaction, covenant not to sue, or estoppel.37

§ 7624. Plea of Release by Membership in Relief Association.— A plea in an action against a railroad company for injuries to an employé, averring that the acceptance of benefits from a relief association should operate as a release of the company from all claims for damages, is insufficient where it fails to aver that the company has become legally obligated to supply necessary funds to such association, or has contributed any of its own funds to the support of the association, or that, if the association was at any time short of funds to meet its obligations to a member, such member could sue the defendant for the amount due him.38

40

39

§ 7625. Pleas in Actions Involving Master and Servant Relation. -In an action against a railroad company to recover for injuries due to its negligence, after the discovery of the peril of the plaintiff, a plea of the general issue puts in issue the negligence charged in the complaint. A master, sued by a servant for injuries, cannot rely upon the defense of assumed rish unless he sufficiently pleads that defense. A plea that the danger was obvious and that plaintiff assumed the risk is insufficient to present the issue of assumption of the risk; since plaintiff might have believed, though the danger was obvious, that he could safely perform the work if given a promised warning." Another defense that must be sufficiently pleaded is the defense that plaintiff was injured through the negligence of a fellow servant.42 An answer in an action against an employer for personal injuries inflicted by a servant, setting up facts tending to show that

"Brunswick &c. R. Co. v. Clem, 80 Ga. 534; s. c. 7 S. E. Rep. 84.

38 Chicago &c. R. Co. v. Miller, 76 Fed. Rep. 448; s. c. 40 U. S. App. 448; 22 C. C. A. 264.

39 Alabama &c. R. Co. v. Burgess, 116 Ala. 509; s. c. 22 South. Rep. 913.

40 Faulkner v. Mammoth Min. Co., 23 Utah 437; s. c. 66 Pac. Rep. 799; Pennsylvania Co. v. Witte, 15 Ind.

App. 583; s. c. 3 Am. & Eng. Corp. Cas. (N. S.) 629; 43 N. E. Rep. 319; 44 N. E. Rep. 377.

41 Postal Tel. Cable Co. v. Hulsey, 132 Ala. 444; s. c. 31 South. Rep. 527.

42 Shechan v. Prosser, 55 Mo. App. 569; Layng v. Mount Shasta Mineral Spring Co., 135 Cal. 141; s. c. 67 Pac. Rep. 48.

the acts of the servant were not within the scope of his employment, does not allege new matter requiring a reply.43 One of the most frequent defenses in this class of cases is grounded on the contributory negligence of the plaintiff. The better opinion is, that concurring negligence on the part of the plaintiff, contributing to the injury, is a matter of defense, to be alleged and proved by the defendant, unless it is shown by the complaint or plaintiff's testimony.** A special plea that the negligence of plaintiff proximately contributed to his injuries without more is bad for generality;45 to be sufficient the plea of contributory negligence must aver a state of facts to which the law attaches negligence as a conclusion. But it is the duty of plaintiff in case of a general plea to move for a more specific 'statement, as the general plea of contributory negligence, though defectively pleaded, will be good where timely objection is not taken thereto. The plea will be strictly limited. Thus, an allegation that plain'tiff by his own negligence caused the injury of which he complains, and that, but for such contributory negligence, the injury would not have occurred, will be construed as referring to the act by which the injury was inflicted and will not include contributory negligence sub

43 Wise v. Covington &c. R. Co., 91 Ky. 537; s. c. 16 S. W. Rep. 351; 13 Ky. L. Rep. 110.

Columbus &c. R. Co. v. Bradford, 86 Ala. 574; s. c. 6 South. Rep. 90; 6 Rail. & Corp. L. J. 111; Albee v. Floyd Co., 46 Iowa 177; Missouri &c. R. Co. v. McCally, 41 Kan. 639; s. c. 21 Pac. Rep. 574; Louisville &c. R. Co. v. Murphy, 9 Bush (Ky.) 522; Ward v. Louisville &c. R. Co., 65 S. W. Rep. 2; s. c. 23 Ky. L. Rep. 1326 (no off. rep.); Thompson v. Great Northern R. Co., 70 Minn. 219; s. c. 72 N. W. Rep. 962; O'Connor v. Missouri Pac. R. Co., 94 Mo. 150; s. c. 7 S. W. Rep. 106; 13 West. Rep. 587; Corey v. Bath, 35 N. H. 530; Hackford v. New York &c. R. Co., 6 Lans. (N. Y.) 386; s. c. 43 How. Pr. (N. Y.) 247; Cogdell v. Wilmington &c. R. Co., 132 N. C. 852; s. c. 44 S. E. Rep. 618; rev'g s. c. 130 N. C. 313; 41 S. E. Rep. 541; Dupree v. Alexander, 29 Tex. Civ. App. 31; s. c. 68 S. W. Rep. 739; Galveston &c. R. Co. v. Bohan (Tex. Civ. App.), 47 S. W. Rep. 1050; Holland v. Oregon Short Line R. Co., 26 Utah 209; s. c. 72 Pac. Rep. 940; Hill v. New Haven, 37 Vt. 501; Fowler v. Baltimore &c. R. Co., 18 W. Va. 579; Goldthorpe v. Hard

man, 2 Dow. & L. 442; s. c. 13 Mee. & W. 377; 14 L. J. (Exch.) 61; Knapp v. Salsbury, 2 Camp. 500; Slattery v. Dublin &c. R. Co., 3 App. Cas. 1155. Where the court admitted evidence showing that plaintiff, who was injured in uncoupling a car from an engine while it was backing, stepped between the rails, in violation of a rule of the company, it was an abuse of discretion to refuse to allow the defendant, at the close of the trial, to file an amended answer pleading contributory negligence in that regard: Louisville &c. R. Co. v. Bowcock, 21 Ky. L. Rep. 383; s. c. 51 S. W. Rep. 580; rehearing denied, 21 Ky. L. Rep. 896; s. c. 53 S. W. Rep. 262. And see May V. Princeton, 11 Metc. (Mass.) 442.

45 Southern R. Co. v. Jackson, 133 Ala. 384; s. c. 31 South. Rep. 988. 46 Osborne v. Alabama Steel &c. Co., 135 Ala. 571; s. c. 33 South. Rep. 687.

"Lien v. Chicago &c. R. Co., 79 Mo. App. 475; s. c. 2 Mo. App. Repr. 445; Borden v. Falk Co., 97 Mo. App. 566; s. c. 71 S. W. Rep. 478; Carter v. Seattle, 19 Wash. 597; s. c. 53 Pac. Rep. 1102.

sequent thereto in the care and treatment of the injury.18 Where the evidence shows that the injured person was of such tender years that he could not be guilty of contributory negligence, it is an error of a harmless character to sustain a demurrer to the plea of contributory negligence."

§ 7626. Cure of Defects in Complaint by Allegations in Answer.— Defective or insufficient allegations of negligence in the complaint, not taken advantage of by defendant, may be supplemented and cured by allegations in the answer. Thus, an insufficient statement of the cause of action in a complaint for personal injuries to one alighting from a car after assisting his sister and her daughter on the train was cured by an answer admitting the contract of carriage, denying the allegation that the injury was caused by defendant's negligence and setting up the plea of contributory negligence.50 So, the failure of a complaint in an action against a railroad company for injuries to a shipment to allege that the railroad company was a corporation when it received the shipment was cured by an answer setting forth facts from which the corporate character of defendant at the time was a necessary inference.51 So, where the complaint did not charge negligence in transmitting a message, but only in delivering it, it was held that the pleadings would sustain a judgment on the ground of negligent transmission where the answer, after denying the allegations of the complaint, added that defendant denied that it was negligent in the transmission or delivery of the message, and both parties tried the case on the theory of negligence in the transmission of the message.52

4 Louisville &c. R. Co. v. Mason, 24 Ky. L. Rep. 1623; s. c. 72 S. W. Rep. 27 (no off. rep.).

40 South Covington &c. R. Co. v. Herrklotz, 104 Ky, 400; s. c. 47 S. W. Rep. 265.

50 Whitley v. Southern R. Co., 119 N. C. 724; s. c. 25 S. E. Rep. 1018.

51 Denver &c. R. Co. v. Cahill, 8 Colo. App. 158; s. c. 45 Pac. Rep. 285.

62 Western Union Tel. Co. v. Parsons, 24 Ky. L. Rep. 2008; s. c. 72 S. W. Rep. 800 (no off. rep.).

§ 7629. Matters of Common Knowledge Need Not be Proved.— There is a large body of facts the knowledge of which is the common possession of all persons; and the existence of these facts is accepted by courts without proof under the doctrine of judicial knowledge. The courts are presumed to know what must be known to the mass of the people and what any intelligent person would be reluctant, if not ashamed, to confess that he does not know.1 It has been very aptly observed that a court is not stricken with blindness and forbidden to know as a judge what he sees as a man.2 This rule renders it unnecessary to prove ordinary mathematical propositions or scientific facts which universal experience has rendered axiomatic. Thus, the Carlisle and Northampton expectancy tables are accepted and used by courts in estimating the probable length of life whether they are introduced in evidence or not.*

3

§ 7630. The Application of the Doctrine to Negligence Generally. -With special reference to the law of negligence, courts will take cognizance without proof of such matters of common knowledge as, for example, that natural gas is a dangerous agency; that gases form

1 Wasson v. First Nat. Bank, 107 Ind. 206; s. c. 8 N. E. Rep. 97. See also, 1 Elliott Ev., § 36.

ing upon it: McGahan v. Indianapolis Natural Gas Co., 140 Ind. 335; s. c. 29 L. R. A. 355; 37 N. E. Rep.

2 Ho Ah Kow v. Nunan, 5 Sawy. 601. (U. S.) 552.

3 Weaver v. Benton-Bellefontaine R. Co., 60 Mo. App. 207; s. c. 1 Mo. App. Repr. 118. Courts are bound to take notice of the elementary laws of gravitation: Cox v. Syenite Granite Co., 39 Mo. App. 424. It is a matter of common knowledge that natural gas will not explode spontaneously without some agency act

'Lincoln v. Power, 151 U. S. 436; s. c. 38 L. ed. 224; 14 Sup. Ct. Rep. 387.

"Jamieson v. Indiana Natural Gas Co., 128 Ind. 555; s. c. 12 L. R. A. 652; 10 Rail. & Corp. L. J. 163; 44 Alb. L. J. 145; 28 N. E. Rep. 76; 34 Am. & Eng. Corp. Cas. 1; Alexandria Min. &c. Co. v. Irish, 16 Ind. App. 534; s. c. 44 N. E. Rep. 680.