The plaintiff's motion to amend her plea in abatement is denied. Such pleas are entitled to little favor from a court (Green v. New London, etc., Soc.,32 Conn. 95, 96), especially from this court, where they can seldom serve any purpose but to deprive an appellant, permanently, of his rights on a mere technicality. The law of amendments applies to these pleas; but the right to amend must in this court be exercised on or before its second opening. After that time the allowance of an amendment is a matter of discretion, which would hardly be exercised favorably unless it were apparent that the allowance would really serve the ends of justice. In the present case certainly it would serve no useful purpose, because the other averments of the plea are clearly insufficient.
The demurrer to the plea in abatement is sustained. The statute gives the right of appeal from a final judgment to any party aggrieved. A judgment against several persons in an action of tort is several as well as joint. When severed, all rights in further dealing with the judgment as applicable to himself, belong to each defendant. A severance is made when one, in pursuance of statutory authority, continues the litigation in another court, and the others do not. Chapin v. Babcock, 67 Conn. 255, 256. When such continuance is by appeal to this court, the other defendants may appear for the protection of their interests, if they deem them involved. The filing of the notice of appeal was notice to this defendant, as well as to the prevailing party, and put *Page 432 it so far in the position of an appellee as to entitle it to be heard on all matters appertaining to the appeal.
The plea in abatement was the proper mode of presenting the plaintiff's objection to the appeal, and the motion to dismiss is therefore not entertained.
Counsel for the plaintiff was strangely mistaken in supposing he could make two causes of action out of the injury to his client. The separation of his material allegations by the words "second count," was unwarranted and ineffective. The trial court emphasized the fault, by its error in ordering the plaintiff to elect on which count she would proceed. The practical effect of the order was to compel the plaintiff to omit an averment she was entitled to make. It was proper to aver that the injury was received in being hurled to the ground in jumping from the car, and also by being hurled to the ground when just ready to jump. She was entitled to allege what was substantially the same fact in different forms, to meet the possible conditions of testimony. Such double allegations are improper only when plainly unnecessary, or when one or the other is false to the knowledge of the pleader. After the erroneous order of the court had been obeyed, the plaintiff in amending the complaint might well have altered the phraseology of paragraph 8, so that it should express its evident meaning in more accurate language, but the motion, for such reason, to strike out this material allegation, was frivolous, and was properly denied.
There was no error, now available to the defendant, in overruling the demurrer to the amended complaint.
The naming in the writ of Charles H. Brockett, as coplaintiff and husband of the plaintiff Mary L. Brockett, was permissible;Fuller v. Naugatuck R. Co., 21 Conn. 557, 570; General Statutes, § 987; Haman v. New Britain Nat. Bank,42 Conn. 141; Warren v. Clemence, 44 id. 308, 309; Wells v.Cooper, 57 id. 52, 58; and furnished no ground for the defendant's demurrer to the complaint.
Paragraph 9 of the complaint states that "the defendants were grossly negligent in not having some means or method to warn each other of the approach of each other's cars, and *Page 433 in approaching a place so dangerous at such a rate of speed as to be unable to have complete control of their cars and thereby prevent a collision, as the one complained of." This paragraph, in connection with the other facts alleged, contains an allegation of an actionable negligence sufficient in substance. "The duty of a corporation like the defendant, to use every reasonable precaution to minimize the danger to the public growing out of its exercise of the special privileges granted it in the use of highways, is clear." Murphy v. Derby Street Ry. Co., 73 Conn. 249, 253. The duty to keep sufficient control of its cars under the circumstances alleged in the complaint, is one which rested on each defendant, and a breach of that duty was actionable negligence. The demurrer also claims that the negligence alleged is not stated with requisite directness and certainty. This defect, if it exists, is one of form and not of substance, and in common with all other defects of form, was waived when the defendant abandoned its defense to the action and submitted to a default.
There is no error in the rulings of the court upon the defendant's claims made upon the trial. The claim that judgment could not be rendered for substantial damages because the complaint contains no allegation that the plaintiff was in the exercise of due care, is without foundation. The allegation that the injury complained of was caused by the negligence of the defendant, is not established if in fact the injury was also caused by the negligence of the plaintiff; and in this State the burden of proof is on the plaintiff to show that his negligence was not a contributing cause of the injury. By the general law of negligence, every person is bound to exercise ordinary care in his acts and omissions that may endanger others; if he neglects to do this he violates a legal duty which he owes to each person who may be exposed to the danger, and the injured party has a right of action against such wrongdoer. But in such case the injured party is subject to the same law; he owes the same duty, and is likewise in fault if he violates that duty. When an injury to one results from the fault of both, the equitable rule would *Page 434 be that each should suffer in proportion to his wrong. But on grounds of public policy the law has established an arbitrary rule that when the injury complained of has been caused by culpable negligence of both plaintiff and defendant, it has not been caused by the negligence of the defendant, and so the plaintiff cannot recover for the injury. Park v. O'Brien,23 Conn. 339, 345; Brown Bros. v. Illius, 27 id. 84, 92;Isbell v. New York N. H.R. Co., ibid. 393, 406; Bartram v. Sharon, 71 id. 686, 689; The Bernina, L. R., 12 Prob. Div. 36, 89. This arbitrary rule not only affects a right of action, but operates as a rule of evidence. The fact that the plaintiff's injury was caused by the negligence of the defendant, demands evidence that it was not also caused by the plaintiff's negligence. This view logically supports the rule followed in this and some other States, that the burden of proof upon the question of contributory negligence rests upon the plaintiff; and it also logically supports the conclusion that an allegation that the injury to the plaintiff was caused by the negligence of the defendant necessarily involves the allegation that the negligence of the plaintiff did not contribute to the injury. Therefore, in a complaint sounding in tort, to recover for an injury due to the negligence of another, a direct allegation that the injury was caused by the defendant's negligence must involve the allegation that the negligence of the plaintiff did not contribute to the injury; in such case a separate allegation to that effect is unnecessary. There need be no direct allegation of a fact necessarily implied from other averments. Lord v.Russell, 64 Conn. 86, 87. Where a direct allegation of the exercise of due care on the part of the plaintiff may be proper, as in an action on the statute for injuries caused by a defect in a highway, it is sufficient in substance to allege facts which show that the plaintiff was in the exercise of due care. In the complaint before us, the fact that the injury was caused by the negligence of the defendant is not directly alleged, but the facts alleged show that the injury was so caused and that the negligence of the plaintiff did not contribute to the injury. We think the complaint supports the *Page 435 judgment. Even if its averments are not sufficiently clear, the defect is one of form and not of substance. Such defect is waived unless pointed out in a demurrer, and the demurrer of the Manufacturers Railroad Co. failed to specify the defect.
The court rightly overruled the defendant's claim as to what constituted negligence. It is the duty of this appellant to operate its cars in approaching a crossing so dangerous as that described in the complaint and found by the court, at such a rate of speed and under such control as may be reasonably necessary to prevent a collision with cars crossing its tracks. It is possible that the conditions of the crossing might be such that it would be its duty to bring its cars well nigh to a stop before crossing. The trial court has found that the conduct of the defendant, under the circumstances of this case, was negligent and in violation of that duty, and was the proximate cause of the plaintiff's injury, to which the negligence of the plaintiff did not contribute. There is nothing in the record to indicate that these findings were affected by any erroneous view of the law, and they are therefore final. Murphy v. Derby Street Ry. Co., 73 Conn. 249.
The rulings on evidence were unobjectionable and call for no special notice.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.