The water company are sued for alleged negligence in omitting to fence in or light a street excavation in the city of Buffalo, in consequence of which, it being very dark, the plaintiff, as he alleges, fell in and sustained very serious injury. He claimed $5,000 damages. A verdict was found in his favor for $1,000, and judgment rendered for that amount, which the general term of the Buffalo Superior Court, overruling the defendants' exceptions, affirmed.
It is contended by the company that on the evidence the injury sustained might have arisen from other causes, and that there was no proof that the plaintiff, whatever might have been his injuries, fell into the ditch which the Water Works Company had dug. This objection was met at the trial, and so the judge decided; by the position taken by the plaintiff's counsel, that the pleadings admitted the fact of falling into the ditch. A nonsuit was denied on that ground, and the ruling to that effect governed all the subsequent proceedings. It was duly excepted to at the proper stage of the trial, and the defendants had a right to the benefit of the exception without repeating it at every step. And as the whole trial was conducted afterwards upon the assumed admission, the verdict of course must be set aside if that assumption was erroneous.
No express admission is pretended. But the Code, it is said, declares (§ 168) that every material allegation of the complaint, not controverted by the answer, "shall, for the purposes of the action, be taken as true." Now the complaint expressly avers, not only that the plaintiff fell into the ditch, but that he fell into it in consequence of the company's negligence in omitting to place any light, fence or other protection to guard against accident. The answer denies that the ditch was left unguarded, "so that persons using reasonable care" would fall into it; in other words, it distinctly controverts the charge of negligence. It then proceeds with a further denial "that the plaintiff, without any fault or want of care on his part, did fall therein." And *Page 122 the question is, does this averment put in issue the plaintiff's want of negligence, or the plaintiff's falling into the ditch, or both.
The denial as to the falling into the ditch, it must be conceded, is not very specific; and under the Code, as it stood originally, would probably have been pronounced insufficient. "A specific denial of every allegation of the complaint" was then required (§§ 149, 169), and every allegation, "if not controverted as prescribed," it was declared, should be "taken as true." In 1852, however, the words "not specially controverted" were superseded by the words "not controverted," and the words "specific denial" by the words "general or specific denial." The present action was commenced in 1855. The answer, therefore, is to be governed by the amended Code. And as it contains a "general denial" of the plaintiff's allegation of his having fallen into the ditch in the manner described, that allegation in all its parts, "for the purposes of the action," must be deemed to have been "controverted."
We consider the answer, notwithstanding, as open to criticism. It is a species of negative pregnant. But the plaintiff, if dissatisfied with the vagueness and uncertainty of the pleading, had his remedy by motion. Not having applied, at the proper time, for an order to compel the defendants to be "more definite and certain," he is presumed to have been satisfied with the pleading as it stood, especially as he knew that, under the present system, it was made "the duty of the court to construe pleadings liberally," and of course not to assume that parties, by implication, intended to admit when they could safely deny their adversary's case.
The point has been decided in this court, in a case which has not been reported here. At the March term, 1855, it had under review the action of Lawrence v. Williams, upon an appeal from a judgment of the Superior Court of the city of New York, which is reported in 1 Duer, 585. It *Page 123 was an action in the nature of ejectment, to recover the possession of certain premises which had been demised to the defendant, on the ground that he had broken the covenant not to underlet without the consent of the lessor. The defendant answered, denying that "in violation of the said covenant, andwithout the consent of said plaintiff, he had underlet the said premises." On the trial the plaintiff gave in evidence the lease containing the covenant not to underlet, and a general clause of reëntry, and rested. The plaintiff had a verdict on the ground that the answer did not deny the fact of underletting, and the judgment was affirmed at a general term. The court held that the answer admitted the underletting, and that it took issue merely upon the allegation that such underletting was without the consent of the plaintiff. On the appeal here, this court reversed the judgment. The opinion which prevailed was prepared by GARDINER, then Chief Judge. It has not been furnished to the reporter; but, on inquiry of that officer, I find that he entered in his minutes the conclusion to which the court arrived, as follows: "The plaintiff should have proved the underletting. The answer, although it contains a negative pregnant, puts in issue the subletting." The case is in principle precisely like the present, and must determine the judgment we have now to render.
The judgment of the Supreme Court must be reversed and a new trial awarded.