I most respectfully dissent from the majority opinion. I am in accord with the views expressed that the defense of contributory negligence must be specially pleaded, and that the pleadings will not be enlarged by evidence, not objected to, which is in support of other allegations under the pleadings, even though it shows contributory negligence. But in my view, these principles are improperly applied to the facts in this case.
In plaintiff's petition she alleged that the accident was "caused solely and entirely through the negligence and gross carelessness of the said L.H. Johnson in driving his car at night without lights at a high rate of speed and on the wrong side of the road." It was incumbent on her to prove that the fault causing this collision was entirely that of the driver of the Johnson car. This she properly alleged, but, when the testimony of her witnesses is offered, it shows that the deceased was at fault, at least in the particular that he was driving his car partially on the wrong side of the road. The majority opinion holds "the evidence convinces us that neither car was completely on the wrong side of the road. It is practically admitted that the collision occurred near the middle of the road." Each of the two survivors in the Baden car, which was driven by plaintiff's deceased husband, testified that the left wheels of their car were running on the black line dividing the road into two equal parts, at the time of the collision. That being true, the fenders would extend anywhere from six to twelve inches over on the wrong side. If, therefore, defendant's assured was likewise driving his car on this black line, as plaintiff's witnesses said was the case, we would have clear proof that the proximate cause of the injury was the fact that both cars were running, at the time of the collision, partly on the wrong side of the road. That would undoubtedly show a clear case of contributory negligence which would relieve defendant from liability if that defense had been pleaded.
Since plaintiff has voluntarily proved by her witnesses a state of facts that shows contributory negligence on the part of her deceased husband, and which evidence not only was not necessary under her pleadings, but is contrary thereto, I think she has thereby extended the pleadings so as to inject into the case the issue of contributory negligence, and in addition, she has proven that defense, so that defendant is relieved from any liability in this case.
But even if the foregoing conclusions are incorrect, I am still of the opinion that the judgment of the lower court should be reversed because plaintiff failed to discharge the burden of proof resting upon her. In making this statement I am conscious of the well-recognized rule that the findings of fact by the lower court will not be disturbed on appeal, unless manifestly erroneous. But as I appreciate the evidence, that manifest error exists in this case.
There were five survivors of the two cars in this collision. Two of them were occupants of the Baden car, and three of them were occupants of the Johnson car. The two occupants of the Baden car, after having admitted that their car was traveling at least partially on the wrong side of the road, stated that their lights were burning, while the car of the defendant's assured was being driven on the wrong side of the road and without lights. On the other hand, the three occupants of the Johnson car testified that they were traveling on the proper side of the road at the time of the collision, with their lights burning, while the Baden car was being driven on the wrong side of the road and without lights.
In arriving at my conclusions, I take into consideration the character of the witnesses on the two sides. The majority opinion, in referring to Mrs. Johnson and Mrs. Cunningham, two of the occupants of the Johnson car, states "these are two most estimable Christian ladies, and, if they had even caught a glimpse of the oncoming car they would have so testified." We think the majority opinion could have, with equal certainty, stated that Mr. Johnson is one of Natchitoches' most substantial citizens. Against their testimony is pitted the testimony of the two survivors of the Baden car, who were admittedly engaged at the time of the collision in illegally transporting twenty-four gallons of whisky from some unnamed place somewhere south of Alexandria to the city of Shreveport, to be illegally sold at retail. One of them, at least, had recently been released from jail. I cannot accept the testimony of two men who entered into a collusion for the purpose of transporting and selling, at retail, a large quantity of whisky in violation of law, in preference to three witnesses on the other side of the controversy who are admittedly among our finest and best people, for such is the character and reputation of Mr. and Mrs. Johnson and of Mrs. Cunningham. At least I cannot agree that plaintiff, relying upon *Page 58 such testimony, discharged the burden of proof resting upon her.
For these reasons I think the judgment of the lower court should be reversed.