#### W. H. Gregory, Appellant, v. A. P. Woodworth.

Pleading: contributory negligence. In an action under Code. 1485, making the owner of a vicious dog liable for damages done by the dog, the petition must aver that plaintiff was free from contributory negligence.

*Appeal from Floyd District Court.*— Hon. J. C. Sher-wiN, Judge.

Thursday, January 17, 1895.

Action at law to recover damages by reason of a personal injury alleged to biave been caused by defendant’s dog. There was a demurrer to the petition, which was sustained. Plaintiff elected to stand upon his petition, and judgment was rendered against him for costs, and he *appeals.*

Affirmed.

*J. 8. Root*for appellant.

*Ellis*& *Ellis*for appellee.

Rothrock, J.-

-The averments of the petition, which state the cause of action, are as follows: “The plaintiff states: That on the 4th day of June, 1892, that as he was proceeding along a public highway in Floyd county, Iowa, past the farm of defendant, on his way from his home, in Cedar township, Floyd county, Iowa, to Charles City, Iowa, on top of a load of wood, a dog, the property of defendant, — a dog which he harbored on his place, — was lying in the highway over which the team was passing, and as the team reached the said dog the said dog attacked the team and wagon, on which wagon the plaintiff was riding, by springing violently at the horses’ heads, apparently intending to *247bite them. That the horses avoided said attack by throwing up their heads, and springing to the side of the road. That the dog had a characteristic habit of attacking teams in this manner. That the horses were frightened thereat, and ran away. That the wagon was overturned. Your plaintiff was thrown violently to the ground, and the wood upon the wagon overturned upon him. That thereby his leg was broke below the knee; his ankle dislocated. That three of his ribs were broken, and his collar bone was broken, and he received internal injuries. That he was confined to his bed for over two months, and to the house for over four months. That on account of, and arising from, these injuries, plaintiff has since said June 4, 1892, daily suffered great pain and distress, both of body and mind, and still continues to suffer therefrom.”

One ground of the demurrer is as follows: “It is not shown that said injury resulted from the acts of said dog, and that plaintiff was without fault or negligence, or that other causes than the acts of said dog did not contribute, to the injury.” In other words, by this ground of demurrer, the question was submitted to the court whether it was necessary to aver in the petition that the plaintiff was not guilty of negligence which contributed to the injury. The petition contains no such averment. It is an affirmative fact, necessary to be pleaded and proven. The right of action is based upon the negligence of the defendant in owning and keeping the dog which- attacked the team, and caused it to run away. The action is founded upon that part of section 1485 of the Code which provides that the owner of a dog “shall be liable to the party injured for all damages done by his dog except when the party is doing an unlawful act.” This does not create an absolute liability. The acts of the injured party may be *248such as to contribute to the injury, by improper treatment of the dog, or other acts of negligence connected with the injury. See *Reynolds v. Hindman,*32 Iowa, 146. It is a general rule, established by a long line of authority, that a party cannot recover for an injury resulting from the negligence of another, if, notwithstanding such negligence, he might have avoided it by the exercise of ordinary care on his part, or if he in any way contributed directly to the injury, and that the burden is on the plaintiff to show his freedom from negligence. Plaintiff, in his petition, must show a cause of action, and his pleading is not sufficient without the averment of his own care. There is no legal requirement that he should set out specific facts. It is sufficient that he plead the absence of contributory negligence in general terms. *Messenger v. Pate,*42 Iowa, 443.

There are other grounds of demurrer discussed by counsel, which we need not determine. The ruling of the District Court can well be sustained upon the defect in the petition above considered. The judgment of the District Court is *affirmed.*