#### Joseph Robinson, Respondent, *v.*Ocean Steamship Company of Savannah, Georgia, Appellant.

First Department,

May 1, 1914.

Master and servant — Labor Law, section 202a — pleading contributory-negligence as defense—general allegations sufficient.

The enactment of section 202a of the Labor Law, providing that in actions for negligence “ contributory negligence of the injured employee shall be a defense to be so pleaded and proved by the defendant, ” has effected a complete change in the law. Before its adoption the burden rested upon the plaintiff in such a case to allege and prove that he or the employee whom he represented had not been guilty of contributory negligence. The defendant in an action under the statute may plead generally the plaintiff’s negligence, thus giving notice of his intention to rely upon that defense if the facts shown upon the trial warrant it. He need not allege specifically the facts constituting contributory negligence.

Appeal by the defendant, Ocean Steamship Company of Savannah, Georgia, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of February, 1914, sustaining a demurrer to a separate defense pleaded in the answer.

*Herbert*Barry, for the appellant.

*James Fred. Barber,*for the respondent.

Scott, J.:

The action by an employee against his employer is for damages for negligence, the charge being that defendant had permitted the deck of a steamship, upon which plaintiff was working as a stevedore, to be wet and slippery. The accident happened in April, 1912. In the defense demurred to the defendant pleads: *“*Upon information and belief, that any injuries which the said Joseph Robinson may have sustained at the time and place mentioned in the complaint, were caused by his own carelessness and negligence and in no way by negligence on the part of this defendant.” This was coupled with denials of knowledge or information as to the accident for which plaintiff sues. The demurrer has been sustained and this defense condemned because it fails to state the particular facts consti-

*170tuting negligence on plaintiff’s part, and in effect pleads only a a conclusion resulting from a state of facts not sufficiently pleaded. The question, so far as we are advised, is a new one in this State, and arises from section 202a of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), as added by chapter 352 of the Laws of 1910, reading as follows: “ On the trial of any action brought by an employee or his personal representative to recover damages for negligence arising out of and in the course of such employment, contributory negligence of the injured employee shall be a defense *to he so pleaded*and proved by the defendant.” This amendment has effected a complete change in the law. Before its adoption the burden rested upon the plaintiff in such a case to allege and prove that he or the employee whom he represented *had not*been guilty of contributory negligence. The question of the sufficiency of such a plea as the present has been passed upon in other States and the weight of authority in those cases certainly tends to support the order appealed from. *(Tennessee Coal, Iron & R. R. Co.*v. *Herndon,*100 Ala. 451; *Johnson*v. *Louisville & Nashville R. R. Co.,*104 id. 241; *Brown v. St. Louis & S. F. R. R. Co.,*171 id. 310, 314; *Jeffersonville, Madison & Indianapolis R. R. Co.*v. *Dunlap,*29 Ind. 426, 429; *Fuller v. Ill. Cent. R. R. Co.,*100 Miss. 705, 715; *Harrison*v. *Missouri Pacific Ry. Co.,*74 Mo. 364, 369; *Cogdell*v. *Wilmington & Weldon R. R. Co.,*132 N. C. 852, 855; *Brown*v. *Seattle City Ry. Co.,*16 Wash. 465, 468; *McInerney v. Virginia Carolina Chemical Co.,*118 Fed. Rep. 653.) There are, however, well-reasoned cases holding the contrary view *(Chesapeake & Ohio Ry. Co.*v. *Smith,*101 Ky. 104; *Stewart*v. *Galveston, H. & S. A. Ry. Co.,*34 Tex. Civ. App. 370), and it is stated in *McInerney*v. *Virginia Carolina Chemical Co. (supra)*that a general plea of negligence without specification of detail is held to be sufficient in South Carolina. In view of this difference of opinion upon the subject in other jurisdictions, and in the absence of any controlling precedent, we are at liberty to consider the question *de novo.*

The question as to whether the ultimate fact or the probative or evidential facts from which the ultimate fact is to be deduced should be stated in a pleading is an old one which has *171given rise to much discussion and to some fine distinctions. Thus it is well settled that an allegation that one has “ fraudulently ” done a certain act is insufficient without specification of the acts constituting the fraud, but in these and similar cases it will generally be found that the real objection is that the statement is considered to be a conclusion of law and not the allegation of an ultimate fact, for it is not always easy to distinguish a conclusion of law from a conclusion of mixed law and fact. Negligence, however, in our opinion is a fact to be pleaded as such. It is that lack of care which makes a lawful act an unlawful one. If a pleader seeks to recover damages for an injury he must set forth the injury, and if it proceeded from an act of the defendant, not inherently unlawful, he may allege that the act was negligently done in order to fasten liability upon the doer of the act, but whether negligence existed or not is a question of fact. As was said in *Louisville & Nashville R. R. Co.*v. *Wolfe*(80 Ky. 82, 84): “Negligence is the ultimate fact to be pleaded and it forms part of the act from which an injury arises, or by which contributory negligence is made out. It is the absence of care in the performance of an act, and is not merely the result of such absence, but the absence itself, and is not, therefore, a mere conclusion of law and may be pleaded generally.” In *Oldfield*v. *N. Y. & Harlem R. R. Co.*(14 N. Y. 310, 314) the complaint merely alleged generally that the death of plaintiff’s intestate was caused by the negligence and default of the defendants and their agents and servants. This was held to be sufficient, the court saying that “This authorized evidence of the defendants’ neglect or misconduct tending to produce the injury, without a more particular statement in the pleading.” In *Edgerton*v. *N. Y. & Harlem R. R. Co.*(39 N. Y. 227, 230) Judge Grover said: “ The complaint contained a general averment that the injury was received from the negligence of the defendant and its employees, and it is therefore immaterial whether the proof established the particular negligence specified in the complaint, some negligence being shown.” (See, also, *Roblee*v. *Town of Indian*Lake, 11 App. Div. 438; *Ellsworth*v. *Agricultural Society,*99 id. 120; *Powell*v. *Cohoes R. Co.,*136 id. 207; *Jackman*v. *Lord,*56 Hun, 192; *McCarthy*v. *N. Y. C. &**172*H. R. R. R. Co.,*24 N. Y. St. Repr. 924.) In Missouri, after certain decisions apparently holding to the contrary, one of which is cited above, it was held in *Schneider*v. *Missouri Pacific Ry. Co.*(75 Mo. 295) that it is not necessary in an action for negligence to specify the particular negligent act complained of, but that a general averment of negligence will be sufficient. This was followed in *Palmer*v. *Missouri Pacific Ry. Co.*(76 Mo. 217) and *Mack*v. *St. Louis, Kansas City & Northern Ry. Co.*(77 id. 232). Any other rule would result in a great majority of cases like the present, and especially in cases where it is sought to hold defendant under the rule *respondeat superior,*in depriving defendant altogether of the defense founded on the contributory negligence of the plaintiff. In such cases the question whether or not the plaintiff was negligent will depend upon the circumstances attending the accident which are generally unknown to the defendant until developed on the trial. There is no reason to believe that the Legislature intended to produce such a result. In our opinion the purpose of the statute will be fully met if it be held that a defendant may plead generally the plaintiff’s negligence, thus giving notice of his intention to rely upon that defense if the facts as shown upon the trial shall warrant it. In addition, the statute has placed upon defendant’s shoulders the burden of proof as to plaintiff’s negligence, relieving plaintiff from the burden which he formerly bore of proving affirmatively his own freedom from negligence. This construction of the statute will do justice to both parties to an action like the present without unduly burdening either, and will not operate to deprive defendants in negligence cases of a perfectly legitimate defense. It is also in harmony with *Griffin*v. *Cunard Steamship Co., Ltd.*(159 App. Div. 453), recently decided by this court.

The interlocutory judgment appealed from must be reversed, with costs and disbursements, and the demurrer overruled, with costs.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of said costs.