I concur in the conclusion reached in this case, but am unable to concur in all of the views expressed. I believe with my associates that under the provisions of our code the actual elements upon which damages are recovered in a case of this kind should be pleaded in the complaint. The spirit of our code and of our practice, so far as pleadings are concerned, is that each party to the action shall be notified in advance of the facts which his adversary expects to prove at the trial.
This is only fairness to both parties. The opinion in this case holds that the judgment and verdict should be set aside and a new trial granted because at the trial the plaintiff was permitted to prove facts showing negligence on the part of the defendant, without those facts having been pleaded in the complaint, thus giving the defendant no notice that evidence would be introduced to prove such facts. That, course was manifestly nnfa.iT to the defendant. Thus far I concur in the majority opinion. But I am unable to give my assent to the proposition that, before the plaintiff can recover damages based upon the *311negligence of the defendant, he must allege and prove that he is not guilty of contributory negligence. The great weight of authority is against this rule. The great weight of authority is to the effect that contributory negligence upon the part of the plaintiff is a defense, and must be pleaded by the defendant as a defense, and that the burden of proving contributory negligence is upon the defendant. To my mind, this is the correct rule. Under this rule the defendant, in its answer in this case, if it relies upon specific acts constituting contributory negligence upon the part of the plaintiff, would have to plead those acts in its answer, and thus notify the plaintiff, in advance of the trial, of the facts it expected to prove showing contributory negligence, thus giving to the plaintiff the opportunity to meet such defense. This rule is fair to the plaintiff, and in accord with the spirit of our code. But the rule enunciated in the majority opinion, to the effect that the plaintiff must allege and prove a negative, and that the burden of proving such negative, to wit, “that the plaintiff has not been guilty of contributory negligence,” is upon the plaintiff, virtually makes it unnecessary for the defendant to say an3thing in its answer about contributory negligence, and leaves the door wide open for the defendant at the trial to prove facts showing contributory negligence on the part of the plaintiff, without the plaintiff having had any notice whatever that such facts would be put in proof or in issue at the trial. The rule to which I cannot assent, believing it to be erroneous, was adopted by the territorial predecessor .of this court, and I think has been inconsiderately followed through deference to the territorial supreme court. I think it would be the proper thing to overrule the decisions of this court touching the rule under consideration, and carry out fully the manifest intent and spirit of our code, so far as making up the issues between parties to an action, in their pleadings, is concerned.