Reports of Cases Argued and Determined in the Supreme Court of the State of Montana from December Term 1868, to Volume 29

Reports of Cases Argued and Determined in the Supreme Court of the State of Montana from December Term 1868, to Volume 29

By (author) 

List price: US$22.39

Currently unavailable

Add to wishlist

AbeBooks may have this title (opens in new window).

Try AbeBooks

Description

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1904 edition. Excerpt: ...not considered o-r decided. This court is left somewhat in doubt as to the actual position of ap-pellant's counsel on the questions of assumed risk and contributory negligence of the plaintiff. In the brief filed counsel makes the assertion that the case is to be tested by the question as to whether or not plaintiff assumed the risks of the employment, and states that the question of contributory negligence is not in the case. Upon his oral argument to the court he announced that the above statement contained in his brief was not correct, and that he did rely on the contributory negligence of the plaintiff, and the first point he argued to the court was that the complaint in the case did not state facts suflicient to constitute a cause of action, because it contained no allegation negativing the existence of contributory negligence. The defenses of contributory negligence and assumption of risk are entirely inconsistent with each other, and do not rest upon the same principles; and the existence of one necessarily excludes the existence of the other. (1 Bailey, M. & S. Sec. 938 et seq.; Miner v. Connecticut River R. R. Co., 153 Mass. 398-403, 26 N. E'. 994; Texas P. Ry. v. Bryant, 8 Tex. Civ. App. 134, 27 S. W. 825; Mundle v. Manufacturing Co., 86 Me. 400, 30' Atl. 16.) If the defense of the assumption of risk is maintained, the question of the existence of contributory negligence does not arise, because, if plaintiff assumed the risks of the employment, he cannot recover, even if he exercised the highest degree of care. We recognize the rule that a defendant is entitled to plead in the same answer as many defenses as he may wish to. present, ' even though they are inconsistent with each other, and is entitled to...show more

Product details

  • Paperback | 230 pages
  • 189 x 246 x 12mm | 417g
  • Rarebooksclub.com
  • United States
  • English
  • black & white illustrations
  • 1236954947
  • 9781236954947