I concur in the result because I think the trial court should have submitted the issue of contributory negligence. I concur with Mr. Justice ZINN in his observations concerning Pettes v. Jones, supra. Instead of disturbing Pettes v. Jones, supra, the dictum contained in Thayer v. Denver R.G.R. Co., 21 N.M. 330,154 P. 691, and in Bell v. Carter Tobacco Co., 41 N.M. 513,71 P.2d 683, 685, to the effect that "The plea of contributory negligence is a plea in confession and avoidance, which admits negligence on the part of the defendant, but seeks to avoid liability therefor by alleging that plaintiff was guilty of negligence which contributed to his injury, and the plea is bad if it denies that defendant was negligent" should be overhauled.
In Sandoval v. Atchison, T. S.F. Ry. Co., 30 N.M. 343,233 P. 840, the Thayer case was explained and it is plainly *Page 487 indicated that the dictum therein that a plea of contributory negligence is a plea in confession and avoidance should not be longer followed. Mr. Chief Justice Roberts in the Thayer case in the dictum aforesaid made it plain that the defendant must confess negligence in order to plead contributory negligence by employing as a supporting quotation [21 N.M. 330, 154 P. 691]: "This defense confesses nothing, but avers that the defendant was not guilty of negligence".
The reason that "a plea of general denial and a plea of contributory negligence are not inconsistent in a legal sense and may, when separately pleaded, be embodied in the same answer" as stated in the Sandoval case is that the plea of contributory negligence is not necessarily a plea in confession and avoidance, and it is not required that the defendant expressly confess or admit his negligence in order to plead contributory negligence. See 45 C.J., "Negligence", § 690. In the same section of the last cited text it is said: "A plea of contributory negligence, except where it is accompanied by a general denial, is in the nature of a plea of confession and avoidance, which implies, or is predicated on, the existence of negligence on the part of defendant and seeks to avoid it by showing that plaintiff's own negligence contributed to his injury."
In § 696 of the same text it is shown that a plea of contributory negligence and a general denial do not constitute inconsistent defenses and may be pleaded in the same answer provided they are set out in separate pleas, in different paragraphs. In the same section the effect of such pleading is discussed and it is said: "Such a plea of contributory negligence following a general denial does not constitute an admission or confession of negligence on the part of the defendant."
The text writer cites cases from Ala., Ariz., Calif., Kan., La., Miss., Mo., Mont., Okla. and our own state, the decision in Sandoval v. Atchison, etc. Ry. Co., supra, in support of the last quoted text.
It is a source of regret that our decison in the Sandoval case was overlooked when the opinion in Bell v. Carter Tobacco Co., supra, was prepared. If it had been brought to our attention we would not have again in mere dictum reiterated the earlier dictum in the Thayer case. In the same text (§ 696) the writer says that the plea of contributory negligence "means merely * * * that plaintiff was guilty of negligence which contributed, not to any negligence on the part of defendant, but to the accident which caused the injury. Citing Robertson v. Jennings, 128 La. 795,55 So. 375. The italicized portion of the foregoing quotation from § 690 of the Corpus Juris text (italics mine) indicated that the plea of contributory negligence not "accompanied by a general denial" might be regarded as a plea in the nature of confession and avoidance, but we are not concerned with such a situation.
By our declaration in Sandoval v. Atchison, T. S.F. Ry. Co., supra, we accepted *Page 488 the doctrine stated in the C.J. text at § 690 that: "It is not required that defendant shall expressly confess or admit his negligence in order to plead contributory negligence."
The reason for the rule stated in the text is thus stated in note 66 as follows:
"`Among the authorities * * * the careless use of a familiar term has occasionally led to the inaccurate statement that the doctrine of contributory negligence is a plea of confession and avoidance. This has led to much confusion, and a common impression exists that however innocent the defendant may believe himself to be, before he may accuse the plaintiff of negligence, which caused his injuries, the defendant must first confess negligence on his part. Upon a careful examination of every case in California involving this doctrine which has been called to our attention we are convinced not only that this is an erroneous statement of the law, but that similar language used in each and every one of these cases is mere dicta, either because in each instance the form of pleading declared a mere conclusion, or because the case was really decided upon some other issue. * * * This error may have been aided because of the rule which prevails to the effect that, where there is no negligence shown on the part of the defendant, he is, for that reason alone, free from liability. * * * But under the statute of California and in nearly all Code states the defendant may set forth in his answer as many defenses as he may have, so long as they are separately stated. * * * And these separate defenses may also be absolutely inconsistent. * * * It is quite apparent that to hold that a defendant must first confess his own negligence before he will be permitted to charge the plaintiff with contributory negligence is in direct conflict with the clear declaration of the Legislature and the uniform decisions of our courts with respect to the right to set up various conflicting defenses. Moreover, that doctrine would appear to be a denial of justice and would often preclude one from making a meritorious defense to a charge of actionable negligence. Can it be said that a defendant who is charged with negligence and who conscientiously believes himself to be innocent of that charge, but who is also possessed of facts which lead him to believe that the injuries of which the plaintiff complains were sustained as a direct result of his own lack of ordinary care, must first stultify himself by verifying his answer and swearing that he is guilty of negligence, believing in his own heart that that statement is false, before he will be permitted to set up a valid defense of contributory negligence? Surely this cannot be the law.' Hoffman v. Southern Pac. Co., [84 Cal. App. 337], 258 P. 397, 401."
Being rid of the false notion that an innocent defendant must confess negligence before he will be permitted to set up a defense of contributory negligence we are prepared to receive with hospitality the view that a plea by defendant that "the sole and proximate cause of the collision *Page 489 and consequent injustice to the plaintiff was the careless, reckless, negligent and excessive rate of speed and manner of operation on the part of his said automobile" is a plea of contributory negligence, particularly in view of other features of the pleading hereinafter pointed out.
The pleading of more than was necessary for the defendant to plead does not deprive him of the benefit of the lesser elements which are included in the greater.
As was said in Crawshaw v. Mable, Mo. App., 52 S.W.2d 1029,1031:
"* * * It is an elementary rule of good pleading, uniformly adhered to by the courts of this state from the earliest times, that the mere allegation of more than is essential to make out a cause of action or defense is inconsequential. If the essential proof is within the allegation, this is all that is required. Manifestly, the allegation that plaintiff's negligence caused his injuries necessarily includes the allegation that his negligence contributed to cause his injuries. Plaintiff's criticism of the answer is extremely technical. The answer advised plaintiff of the negligent acts relied on to defeat his action. He was thus sufficiently advised of the charge he was required to meet to avoid the defense arising on account of his own negligence.
"Moreover, the allegation that the plaintiff's negligence directly caused his injuries is not ordinarily understood to mean that his negligence was the sole cause of his injuries. The meaning of the allegation, as it is ordinarily understood, is that his negligence was a producing and efficient cause of his injuries absent which his injuries would not have occurred; in other words, that the negligent act alleged was a proximate event in the causal chain of events resulting in his injuries. It would be difficult to imagine a case in which any negligent act could be said to be the sole cause of a casualty. It always requires the concurrence and co-operation of a number of causal events to bring about a casualty. So that, when an answer alleges that the plaintiff's own negligence directly caused his injuries, the necessary intendment would seem to be, not that such negligence was the sole cause of his injuries, but that it was a proximate cause in the chain of events which brought about his injuries. Such intendment is also made manifest from the fact that, if plaintiff's negligence was the sole cause of his injuries, the allegation was wholly useless, since, if his negligence was the sole cause of his injuries, this fact may be shown under a general denial without any affirmative allegation of it. No plaintiff reading an answer alleging that his own negligence was the direct cause of his injuries could fail to understand that his right of recovery on account of defendant's negligence was being contested on account of his own negligence."
See, also, Friddle v. Southern Pac. Co., 126 Cal. App. 388,14 P.2d 568, 571, where defendant's answer alleged: "That said Glen Friddle met his death by and through his own negligence and that his own negligence was the proximate cause of his death in this * * *", etc. *Page 490
The court said:
"It is difficult to see wherein this pleading is insufficient to present the issue of contributory negligence. It is true that in a discussion between counsel at the trial, counsel for appellant equivocally conceded that contributory negligence was not an issue but this concession was always with the stout insistence that the appellant was guilty of no negligence and that the accident was caused solely through the negligence of decedent. Both counsel in the discussion seemed to be adroitly maneuvering the other into some sort of an admission.
"Appellant's counsel and respondents' counsel both were of the impression that in order to advance the defense of contributory negligence it was necessary that defendant first admit its own negligence. This the appellant declined to do. In this appellant was correct. In sheets v. Southern Pacific [Co.], 212 Cal. [509] at page 515, 299 P. 71, the court said: `It is not the law that a plea of contributory negligence is an admission of culpable negligence on the part of the defendant. A defendant may deny that he was guilty of any negligence, and at the same time consistently claim that, even if the jury should find that he has been negligent, the plaintiff would not have sustained any injury if it had not been for his own negligence as the approximate cause.' This is exactly what appellant did here.
"In Hoffman v. Southern Pacific Company, 84 Cal.App. [337], at pages 346 et seq., 258 P. 397, this question of pleading is elaborately discussed. As a matter of interpretation and construction, the greater always includes the lesser, and where, as here, the defense is made that the negligence of plaintiff was the proximate cause of the injuries, the allegation would include any negligence that contributed to the said injuries.
"As stated in the Hoffman Case, it would seem an absurd proceeding to put the defendant at the risk of absolving himself from all negligence before he could advance the defense of contributory negligence."
Being now lined up by our decision in the Sandoval case with the courts which hold that a plea of contributory negligence "accompanied by a general denial" is not a plea of confession and avoidance, it is proper to hold that if plaintiff's negligence was a concurring proximate cause of the accident or collision he cannot recover. It is not necessarily plaintiff's negligence contributing to defendant's negligence (though it may be) but negligence contributing to the accident or occurrence which will defeat plaintiff's recovery. These observations are so ably explained and fortified by the Oregon Supreme Court in Wallace v. Portland Ry., Light Power Co., 103 Or. 68, 204 P. 147, 148, that I quote extensively from it, as follows:
"A large majority of the other states, including Oregon, hold generally that the defense of contributory negligence must be pleaded and proved by the preponderance of evidence, in order to be available. Indeed, the later holdings in the courts *Page 491 of some of the states which originally enunciated a contrary doctrine are to that effect now, notably in Indiana, where a contrary rule has been established by statute, and in Louisiana, as shown by Pollich v. Sellers, 42 La. Ann. 623, 7 So. 786. So that it may safely be affirmed that contributory negligence is held by the great weight of authority to be a defense which must be pleaded and proved in order to be available, except perhaps in those rare instances where it conclusively appears from the testimony adduced by plaintiff. This conclusion, while establishing the principle that contributory negligence, to be available as a defense, must be pleaded, still leaves open the question as to whether an answer which denies defendant's negligence, and alleges that the negligence of plaintiff contributed to or produced the injury, is sufficient to justify a defense of contributory negligence. In other words, must the defendant confess his own negligence before he can be permitted to prove the negligence of the plaintiff contributing to the injury? In our opinion, the fairer and better rule is that a plea of negligence by plaintiff is not inconsistent with a denial of defendant's negligence, and that such plea is broad enough to admit evidence, and an instruction on behalf of defendant, based upon the theory of contributory negligence. * * *
"Assuming it to be established that a plea of contributory negligence is not a plea in the nature of confession and avoidance, and that a defendant may generally deny negligence and at the same time plead the contributory negligence of the plaintiff, the next question concerns the manner in which such negligence should be pleaded. Upon this point the writer is of the opinion that many of the courts have made the mistake of laying too great stress upon the term `contributory negligence.' The weight of precedent outside of this state is undoubtedly to the effect that the term `contributory negligence' indicates that there was some other negligence than that of the defendant, which tended to produce the injury, a conclusion logically opposed to the doctrine enunciated by Mr. Thompson, supra, and the authorities cited by him in support of it. The logical view is that there may be an act by a defendant, not in itself negligent, which, coupled with the negligent act of an injured person, has produced an injury to him; in other words, that the plaintiff, by contributing to the lawful act of defendant a negligent act of his own, has produced an injury. This case may furnish an example. It was a perfectly lawful and proper act for defendant to move its cars on the public streets. Such an act in itself could produce no injury. But if, in addition to this fact, it should appear that plaintiff negligently stepped off the car while it was in motion, and was thereby injured, it can fairly be said that the lawful and proper act of defendant in running its car upon the public street, plus the negligent act of plaintiff in alighting from the car when the same was so in motion, concurred to produce the injury which could not have occurred had the car been standing still. Plaintiff's *Page 492 contribution to the accident would be the negligent act of attempting to alight when the car was in motion. It was not negligence contributing tosome one else's negligence, but negligence contributing to aninjury, the joint result of two acts, one lawful and the othernegligent. These observations have no relation to the merits of the instant case, except in so far as they serve to illustrate the contentions of the parties. * * *
"Now that the old doctrine that it is a plea in confession andavoidance is practically discarded by the later decisions, itseems absurd to say that while, under a plea that plaintiff'snegligence was partly the cause of the accident, defendant may offer proof and have an instruction upon the theory of contributory negligence of plaintiff, yet if he goes a step further, and pleads that plaintiff's negligence was wholly the proximate cause, his testimony to the effect that it was partly the cause must be disregarded. The reasoning which makes a part more comprehensive than the whole does not appeal to the writer's sense of judicial logic." (Emphasis mine)
The Supreme Court of New Jersey in Feb., 1936, in Dragan v. Grossman, 116 N.J.L. 182, 182 A. 848, 849, put the matter this way:
"The second defense in the answer was as follows: `The negligence of the plaintiff, Walter Dragan, the servant and agent of the plaintiff, Alex Antoniers, who operated his automobile in a careless and reckless manner and without regard for others using the highway was the cause of the alleged accident.'
"The law of liability in cases of negligence, to the effect that one who complains of the negligence of another cannot recover if his own negligence has in anywise contributed to the wrong which is made the basis of recovery, is too well settled in this state in actions like the present to call for the citation of authority. * * *
"Respondents seek to support the instruction on the ground that the pleading did not use the words `contributory negligence,' but implied that the carelessness of the plaintiff was the sole cause of the accident. We do not see our way to draw the line so tightly. While ordinarily the words `contributory negligence' imply a primary negligence in the adverse party, nevertheless, in a literal sense, it implies nothing more than that the conduct of the plaintiff has contributed by his negligence to the thing which happened, namely, in this case, the accident. Whether in whole or in part such negligence was the cause of the plaintiff's loss it would prevent a recovery against the defendants.
"When, therefore, it was charged in the answer that the plaintiff's own misconduct was its producing cause it necessarily followed that it was the cause in part as well. As was said in the similar case of Wallace v. Portland Ry., Light Power Co.,103 Or. 68, 204 P. 147, 149, `It seems absurd to say that while, under a plea that plaintiff's negligence was partly the cause of the accident, defendant may offer proof *Page 493 and have an instruction upon the theory of contributory negligence of plaintiff, yet if he goes a step further, and pleads that plaintiff's negligence was wholly the proximate cause, his testimony to the effect that it was partly the cause must be disregarded.'
"We think the plaintiffs were fairly apprised of the fact that the conduct of the plaintiff's chauffeur would be made a basis of defense, and this question should have been submitted to the jury."
There is another phase of the matter which should be given consideration. In § 693 of 45 C.J. it is said:
"bb. Where Plaintiff Negatives Contributory Negligence. In some jurisdictions, defendant must specially plead contributory negligence, notwithstanding the complaint alleges that plaintiff was free from fault. But in other jurisdictions, where plaintiff makes such an allegation and defendant specifically denies the same, the question of contributory negligence is sufficiently raised without any further pleading, especially where the reply denies that plaintiff's injuries were the result of his own negligence, * * *"
Consulting the pleadings in the case at bar we find that the plaintiff alleged: "That the aforesaid occurrence and the injuries to the plaintiff resulting therefrom, were caused in no way by the negligence on the part of plaintiff, but were caused solely by reason of the negligence, carelessness and recklessness of the defendant, etc."
The answer denies generally the foregoing allegation and alleges certain facts, followed by the statement "and that the sole and proximate cause of the collision and consequent injuries to the plaintiff was the careless, reckless, negligent and excessive rate of speed and manner of operation on the part of the plaintiff of his said automobile."
The reply states among other things:
"Plaintiff specifically denies that the sole and proximate cause of the collision and consequent injuries to plaintiff was due to the careless, reckless, negligent and excessive rate of speed and manner of operation on the part of plaintiff of his automobile, or was in any other manner due to plaintiff's negligence in driving and operating his automobile.
"And on the contrary, plaintiff alleges the fact to be that the sole and proximate cause of said collision and the consequent injuries and damages to plaintiff were due and brought about by the careless, reckless and negligent manner in which defendant was operating his automobile at said time and place."
The importance of considering the state of the pleadings in reaching a decision is noted by the Supreme Court of Minnesota in H.L. Elliott Jobbing Co. v. Chicago St. P., M. O. Ry. Co.,136 Minn. 138, 161 N.W. 390. In that case the answer contained a general denial of the negligence alleged in the complaint, and affirmatively alleged: "that the damage to said automobile was caused by the negligence *Page 494 of the said plaintiff and its servant and employe, and not otherwise". The court over objection submitted the question of contributory negligence to the jury. The court said: "The argument is that the allegation quoted is an averment that the plaintiff's negligence solely caused the damage, and that it negatives the negligence of the defendant charged in the complaint, though unnecessarily so, since it is put in issue by the general denial, but that it is not an averment that the plaintiff's negligence contributed with that of the defendant in doing the wrong and indeed is inconsistent with such a charge. The logic of the argument is appreciated. We do not minimize its force. The rules of pleading are more a means than an end. The thing desired is that controversies may be litigated in an orderly manner and fairly to the parties. It is the long-established practice in this state to receive evidence of contributory negligence under an affirmative allegation that the plaintiff's negligence was the cause, or the sole cause, of the injury. This is a common form of pleading. It is the understanding of the bar that it permits proof of contributory negligence. The plaintiff interposed a reply. It was unnecessaryunless the answer alleged contributory negligence. Our practice works well and is without prejudice to a litigant. We should not disturb it merely to conform to a rule of greater logical nicety." (Emphasis mine)
Counsel for plaintiff (appellee) by failing to move to strike the portion of the answer heretofore quoted and by replying thereto in the manner stated presented an issue — if not of contributory negligence with the nicety of pleading sometimes demanded — nevertheless the issue of plaintiff's negligence as the sole cause of the accident — thereby inviting the court to place the burden of proof upon the defendant to prove that plaintiff's negligence was the sole cause of the accident. I have heretofore spoken of what the parties alleged in their pleadings. I turn to what the court said in his instructions so far as now here material. Summarized they are as follows:
Instruction No. 5. The plaintiff alleges, but defendant denies, that while plaintiff was lawfully driving his automobile at a lawful rate of speed on a public highway, the defendant, who was then and there driving his automobile on said highway, so carelessly, negligently and recklessly, managed and operated his said automobile that the same was violently propelled against plaintiff's automobile, causing the same to overturn, thereby injuring plaintiff, and that the aforesaid occurrence and theinjuries to plaintiff resulting therefrom were in no way caused by negligence upon the part of the plaintiff, but were caused solely by reason of the negligence, carelessness and recklessness of the defendant, in operating his said automobile at a dangerous, rapid, reckless and unlawful rate of speed, etc.
Instruction No. 6. "Under the issues made up as aforesaid the burden of proof rests upon the plaintiff to establish them *Page 495 by a preponderance of the evidence. * * *"
Instruction No. 7. The defendant on his part alleges as follows: Defendant was proceeding along the highway, and was driving his automobile at a slow rate of speed, exercising due care and caution, and plaintiff came toward the intersection (where the accident occurred) at a high and very excessive rate of speed, causing a collision with defendant's automobile, "and that the sole and proximate cause of the collision and consequent injuries to the plaintiff was the careless, reckless, negligent and excessive rate of speed and manner of operation on the part of plaintiff of his said automobile" and to which foregoing allegations, the plaintiff answers and alleges as follows: (Here the court quoted plaintiff's specific denials of matters alleged in defendant's answer including the following): "and plaintiff specifically denies that the sole and proximate cause of the collision and consequent injuries to plaintiff was due to the careless, reckless, and negligent and excessive rate of speed and manner of operation on the part of plaintiff of his automobile, or was in any other manner due to plaintiff's negligence in driving and operating his automobile; and on the contrary, plaintiff alleges the fact to be that the sole and proximate cause of said collision and the consequent injuries and damages to plaintiff were due and brought about by the careless, reckless and negligent manner in which defendant was operating his automobile at said time and place."
Instruction No. 8 was as follows: "Under the issues made up by the allegations of the defendant and the denials thereof as set forth in the next preceding paragraph of these instructions, the burden of proof rests upon the defendant to establish them by a preponderance of the evidence as the term has been defined to you. As to allegations on the part of the plaintiff, other than denials, set forth in the said next preceding paragraph they are taken in law to be denied by the defendant, and you should consider them as so denied, and under such allegations and denials, the burden of proof rests upon the plaintiff to establish such allegations by a preponderance of the evidence as the term has been defined to you."
No objections were made by the plaintiff to the instructions and to the court's manner of defining the issues. I cannot conceive that the learned trial judge instructed as he did in instruction No. 8 which is said by the majority to be error except on the theory that an affirmative issue of some sort had been injected into the case by defendant (in addition to his general denial) as defeasive of plaintiff's cause of action and acquiesced in by plaintiff. Assuming that contributory negligence is an affirmative defense, and must be specially pleaded, and the burden is upon him who asserts it to prove it, then if the sole negligence of the plaintiff may be framed into an issue, it would seem that the burden of proving it would also be upon the defendant who asserts it.
In 45 C.J. "Negligence", § 703, it is said that it has been held that a plea alleging *Page 496 that plaintiff was injured solely by his own fault, carelessness, or negligence is sufficient to put in issue plaintiff's negligence as the sole cause of the injury. It was said in Crawshaw v. Mable, supra, "Negligence of the plaintiff, whether the sole cause or merely a contributing cause of his injuries, is a bar to his action, and is, of course, properly pleaded in bar and so pleading it furnishes no ground for construing the pleading as a mere negation of negligence on the part of defendant." It has been said that under this view the defendant is entitled to only two instructions — one as to his freedom from negligence and the other as to the plaintiff's sole negligence. Some courts, however, hold that the state of theevidence as well as justice requires the third instruction as to contributory negligence. See Rayland Coal Co. v. McFadden,90 Ohio St. 183, 107 N.E. 330, 333 where the court said: "When the evidence on the trial develops a situation in which it is disclosed that the claims of neither of the parties as stated in their pleadings as to proximate cause have been sustained, that both have been negligent in such essential matters as combined to be the proximate cause of the injury, then it is the duty of the court to instruct the jury as to the law touching the situation so developed. The term to be applied to such combined and concurring acts of the parties is not important or material. The essential thing is that the jury must not be allowed to gain an erroneous conception of the law governing such a situation."
In Jensen v. Logan City, 1936, 89 Utah 347, 57 P.2d 708, 715, the court in discussing problems similar to those in the case at bar said: "It would be difficult under such circumstances to hold otherwise, because until the evidence was all in it might be next to impossible to determine whether the injury was due solely to the plaintiff's negligence, solely to the defendant's, or whether they concurred to produce the accident. And if there is any evidence of contributory negligence which was properly admitted in the case, the jury must be guided by instruction in regard thereto. The upshot of the matter is that in many cases the matter of contributory negligence, whether pleaded by the defendant specially or not, comes in by plaintiff's evidence or because, under a general denial or plea that the accident was due solely to plaintiff's negligence, the evidence necessarilyraises the question of contributory negligence and thus raises, as held by the case of Riley v. Good, supra [142 Or. 155,18 P.2d 222], a requirement on the part of the court to instruct relative to it. It is the recognition of these facts which has led to the lack of technical requirements in pleading contributory negligence. In many cases it will enter whether pleaded or not.Moreover, there is a tendency now to view contributorynegligence not as a plea in confession and avoidance, but asdirectly defeasive of plaintiff's cause of action and, therefore (if it were not for custom and the practical consideration of putting plaintiff on notice of what he had to meet), of treatingit as admissible under the general denial. And, indeed, the reasoning is not without validity. If plaintiff has been guilty of negligence which contributed to the accident, *Page 497 the injury has not been caused by the defendant's negligence but by both negligences; consequently by denying the allegation that the negligence of defendant caused the accident, defendant not only denies that he was negligent, but denies that his negligence, if any, caused the injury. If he can show that the contributory negligence of plaintiff caused or contributed to it, it may be said, not without reason, that he has established his denial of the allegation that his own negligence caused it. It is because courts, on the one hand, felt that contributory negligence logically might be shown under the general denial, and yet, on the other hand, believed it was only fair that the plaintiff should be notified at least generally that the defendant intended to rely on contributory negligence, that they required it to be specially pleaded."
These last mentioned illustrations are not unlike the situation in State v. Smith, 26 N.M. 482, 194 P. 869, 872, where the prosecution attempted to prove murder in the first degree perpetrated by lying in wait, and the defendant pleaded self defense, and the court properly instructed the jury on murder in the second degree. In that case we said: "In this connection it is to be remembered that the jury is the judge of the facts. They may believe or doubt all or parts of the evidence for the prosecution or for the defense. This being so, they were at liberty to disbelieve the state's evidence as to lying in wait to kill deceased, or that defendant entertained express malice. On the other hand, they might have believed defendant killed without very considerable provocation and without justification on the ground of self-defense. Under such circumstances, defendant was guilty of murder in the second degree, as the jury found."
So in the case at bar the jury might believe or doubt all or parts of the evidence of the plaintiff or the defendant. This being so, they were at liberty to disbelieve the plaintiff's evidence that the accident was caused solely by the defendant's negligence as plaintiff alleged. On the other hand, they were at liberty to disbelieve the defendant's evidence and contention that plaintiff's negligence was the sole cause of the accident as the defendant alleged and yet have believed that plaintiff's negligence contributed partly to the accident and the consequent injuries to plaintiff.
With the situation before us I think it would be drawing the line too tightly to say that contributory negligence is not pleaded, particularly in view of our statute requiring a liberal construction of pleadings set forth as § 105-524, N.M.S.A. 1929, as follows: "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties. (L. '97, Ch. 73, § 68; C.L. '97, § 2685; Code '15, § 4148)."
So far as notice to the plaintiff of what defendant intends to produce in order to defeat plaintiff's claim it would seem rather odd that the defendant may defeat the plaintiff's claim by showing that the accident *Page 498 was caused by the Act of God, the negligence of a third person or the sole negligence of the plaintiff without notice other than that afforded by the general denial of defendant and yet defendant may not do so when plaintiff's negligence is partly the cause of the accident. The result in my opinion is that the parties invited by their pleadings and acquiescence the giving of instruction No. 8 and therefore there is no reversible error on account of the same having been given, but having been given it was error of the court not to so instruct the jury that the burden then imposed upon the defendant would be discharged if the jury believed from the evidence that the negligence of the plaintiff if proven wasin part the proximate cause of the occurrence and consequent injuries to the plaintiff.
I agree with the progressive law writers that pleadings are a means to an end, the end being the administration of justice. The strict reasoning of the majority which makes a part more comprehensive than the whole does not appeal to the writer's sense of judicial logic. Defendant's pleading did not tend to mislead plaintiff as to the defense contemplated. In view of the legislative admonition quoted supra, and as appellee did not demand greater particularity in the answer and suffered evidence to be introduced which was subject to an interpretation as constituting contributory negligence, I think the issue of contributory negligence should have been submitted — and that it was error on the part of the court to decline to do so.