Action for damages alleged to have been sustained by plaintiff on account of the negligent operation of a freight car over defendant's railway track, as a result of which it collided with an automobile valued at five thousand dollars, driven by plaintiff, demolishing the same and injuring plaintiff to his damage in the sum of ten thousand dollars. The court gave judgment for plaintiff in the sum of one thousand dollars, from which defendant appeals.
In addition to specific denials of the allegations of the complaint, defendant, as a separate defense and by affirmative allegations, alleged that the damage sustained by plaintiff was due to his own negligence, alleged to be the proximate cause of the injury.
The court found "that paragraphs 1, 2, 3, 4 and 5 are true"; but since both the complaint and answer contain paragraphs so numbered, it is impossible to determine from the finding whether it refers to the complaint or answer. Conceding *Page 774 that in support of the judgment we might indulge the presumption that the finding has reference to the complaint, such fact cannot aid the respondent, for the reason that the court specifically found "that all of the affirmative allegations of the defendant's answer are true." It thus clearly and unequivocally appears from the finding that the damage found to have been sustained by the plaintiff was caused by his own negligence as alleged in the answer.
Not only are the findings insufficient to support the judgment, but it is apparent therefrom that defendant is entitled to judgment thereon.
It is, therefore, ordered that the judgment be reversed and the trial court directed, upon the going down of theremittitur, to enter judgment upon the findings in favor of defendant.
Conrey, P. J., and James, J., concurred.