Before entering upon the trial of an action, it is of the utmost importance that all doubt, if such there be, as to what the issues are should be removed. It is alike important to both parties and to the Court. The plaintiff" is entitled to an explicit- denial of the material allegations of the complaint or an admission of their truth, either by direct statement or by silence. He is not bound to act at his peril and judge for himself of the sufficiency of the denials, and then stand or fall according to the subsequent judgment of the Court, nor is he bound to treat bad denials as good in order to avoid an adverse decision upon them at some subsequent stage of the proceedings. His right to an explicit denial or admission is a substantial one, secured to him not only by the express provisions of the statute, but by the plainest principles of logic which under*161lie the science of pleading. If this right is not voluntarily conceded hy the defendant and his answer framed accordingly, it is the duty of the Court, in some way, to enforce the right.
It is quite as important for the defendant and the Court as the plaintiff, that the issues should he settled in advance of the trial. While the defendant is hound to make his denials sufficient in the first instance, and cannot justly complain of adverse consequences if he does not, yet if they are defective and the defects are the result of inattention or mistake and not design, his position is strengthened by a timely construction of his answer and an opportunity to amend it. As to the Court, such an adjustment of the issues contributes to the dispatch of business and the orderly administration of justice by the consequent avoidance of all controversies as to the issues during the progress of the trial, and of all embarrassment in ruling intelligently upon the relevancy of testimony.
Where the plaintiff claims that all the denials are bad, if the answer contains ■ no new matter, he may test the sufficiency of the denials by a motion for judgment upon the pleadings, or by motion to strike out the answer on the ground that it is sham. If some of the denials are deemed good, and the others bad, he may move to strike out the latter. We consider that this practice is authorized by the fiftieth section ’ of the Practice Act, which provides that “ sham and irrelevant answers and defenses, and so much of any pleading as may be irrelevant, redundant, or immaterial, may be stricken out, upon motion, upon such terms as the Court, in its discretion, may impose.” Answers consisting of denials which do not explicitly traverse the material allegations of the complaint, we hold to be, so far, sham and irrelevant within the meaning of the statute. (The People v. McCumber, 18 N. Y. 315.) This course, however, was not adopted, and perhaps the Court did not err in *162declining to entertain the very general and indefinite proposition of the plaintiff-.
Conceding that the plaintiff could recover funeral expenses in this action—a point which we do not decide—the testimony, offered by the plaintiff for the purpose of proving what they were, was properly rejected for the reason that such expenses are in the nature of special damages, and should therefore have been specially averred in the complaint, which was not done. (Stevenson v. Smith, 28 Cal. 102.)
The Court erred, however, in nonsuiting the plaintiff. Upon what particular grounds the Court founded its judgment we are not advised. Various grounds are urged on the part of the respondents in support of the judgment which do not require special notice. Of this character is the point that there was no proof that the child fell through the hole in Jackson street, and also the point that there was no proof of a street crossing, in fact, at the point where the child met his death. Of these, it is sufficient to say that there was evidence tending to prove both the former and the latter.
The claim that there was a fatal variance between the allegations of the complaint and the evidence in relation to the ownership of the irregular block in front of which the accident occurred is without any foundation. Whether the defendants owned the entire block as tenants in common, or distinct parcels in severalty, was wholly immaterial. (Statutes 1863, p. 528, Sec. 8, subd. 8.) If they own the block by separate parcels in severalty, as they allege in their answers, they are nevertheless bound to maintain the crossing, and are therefore within the class of persons described in the second section of the Act under which this action is brought. (Statutes 1862, p. 447.)
How far the plaintiff was bound to go for the purpose of showing that the death of his intestate was not attributable to his own negligence, appears to be the principal question in the case.
The general rule by which juries should be guided in this *163class of cases is well settled. In Butterfield v. Forrester, 11 East. 60, Lord Ellenborough stated it thus : “ One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action—an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.” This mode of statement has been substantially followed in all the subsequent cases; The gravamen of the action is the negligence of the defendant, and as a general proposition it follows therefrom that the plaintiff cannot recover if it appears that his own negligence contributed in any degree to the injury which he has sustained. In a majority of cases doubtless this general rule will meet all the exigencies, but there are cases, of which we think this is one, where it does not seem to afford a satisfactory solution. Where the testimony is of such a character as to show affirmatively what was the conduct of both parties, it is undoubtedly adequate for all purposes; but take a case where the testimony as to the defendant’s conduct does not also show what was the conduct of the plaintiff, must the plaintiff go further and show that he exercised proper caution and prudence, or that no negligence on his part contributed in any degree to the injury ? If under the circumstances of the case he is able to show what his conduct was, it would be no hardship to require him to prove himself blameless; but suppose he is unable, as in the present ease, to show by direct testimony what his conduct was, is the jury bound, as a matter of law, to return a verdict for the defendant notwithstanding his fault is clearly established ? or, which amounts to the same thing, is the Court, in such a case, bound to nonsuit the plaintiff? For the solution of such cases it is obvious that the rule already stated is inadequate.
In a general sense, the burden of proof is on the plaintiff, and he must undoubtedly make a case, in view of which the jury can say that they believe the injury was sustained through the fault of the defendant, unaccompanied by any *164fault on the part of the plaintiff; but has he made such a case, as matter of law, or can he make such a case when he is wholly unable to make any proof as to his own conduct ? Or, in other words, may the jury infer from the habits and character of the plaintiff) and from the natural instinct of self preservation, ordinary care and prudence on his part ?
In Lane v. Crombie, 12 Pick. 176, it was said that the burden of proof is on the plaintiff, not only to show negligence and misconduct on the part of the defendant, but ordinary care and diligence on his own part. Thus stated, it would seem to follow that if he fails to offer testimony tending to prove ordinary care and diligence on his part there is no case for the jury. There are many other cases to the same effect, but they will generally be found in their facts and circumstances to be unlike the present. While we admit the general rule to be that the burden of proof is on the plaintiff to make a case which will leave him blameless, we do not understand that it follows that he must prove affirmatively, in all cases, that he exercised ordinary care and diligence. In the absence of any direct proof we are of the opinion that the jury are at liberty to infer ordinary care and diligence on the part of the plaintiff from all the circumstances of the case—his character and habits and the natural instinct of self preservation. To hold otherwise would he in effect to presume negligence on the part of one in excuse of negligence on the part of another. If the plaintiff makes a case which does not charge him with negligence, we think his case should be allowed to go to the jury. (Johnson v. The Hudson River Railroad Co., 5 Duer, 21, and same case, 20 N. Y. 65; Beatty v. Gilmore, 16 Penn. State R. 463; Button v. The Hudson River Railroad Co., 18 N. Y. 248; Clark v. Kirwan, 4 E. D. Smith, 21.) It should have been left to the jury to say whether the plaintiff’s intestate exercised ordinary care and diligence, under an instruction from the .Court that if he did not the plaintiff would not he entitled-to a verdict.
The judgment is reversed and a new trial granted.