delivered the opinion of the court.
It is alleged in substance by the appellee that there was a hole in the platform connected with appellant’s depot; that the opening, and its dangerous character, were known to the appellant, but it negligently, wantonly, and willfully failed and refused to repair it, and while removing a box of freight from said depot to his wagon, having necessarily to pass over said hole, he fell into it, and broke the left patella ■or knee-cap of his leg, for which he prayed damages.
From a judgment, upon a verdict of $2,000 in favor of ■appellee, the appellant prosecutes this appeal, and raises the question, first, upon the pleadings, that-the facts constituting •contributory negligence, which it pleaded, were not denied, ■and therefore no verdict or judgment should have been rendered in appellee’s behalf.
The allegation of the answer is, “that the plaintiff had full knowledge of said defect, and with his eyes wide open, and in open broad daylight, walked into said hole, and by his own negligence contributed to said injury, and thereby Re alone is responsible for his misfortune.”
To this the appellee replied, that “the plaintiff Wm. R. Wolfe, for reply to defendant’s answer, denies that he was *84guilty of any negligence at or before the time of the injury complained of in his petition, or that he contributed in any way by his negligence to the occurrence of said injury. He denies that defendant is relieved from responsibility for their gross and willful neglect by reason of any negligence on the-part of the plaintiff. ”
It is contended -by counsel that the reply fails to deny, the substantive facts constituting contributory negligence,, and only traverses the averment of negligence, which is-but denying a legal conclusion.
The error in this position lies in the assumption that the allegation of negligence is a mere legal conclusion, and that the supposed substantive facts constitute contributory negligence, neither of which is true.
Negligence is the ultimate fact to be pleaded, and it forms-, part of the act from which an injury arises, or by which contributory negligence is made out. It is the absence of care in the performance of an act, and is not merely the result of such absence, but the absence itself, and it is hot, ' therefore, a mere conclusion of' law, and may be pleaded generally. Although the appellee, with his eyes open and in broad daylight, walked into the “hole,” these facts alone-would not constitute neglect, but if done intentionally or negligently they would do so. Nor does the fact that the appellee knew the “hole” was in the floor, when added to those named, constitute negligence, as want or absence of care must be averred in some form, as it is one of the essential facts necessary to such a defense. '
The issue formed by the reply was material. (42 Iowa, 378; 34 Mo., 235; 14 N. Y., 310; Bliss on Code Pleading,, sec. 211.)
*85It is urged that the proviso to the second instruction was •erroneous, because the appellant could not have been required to use ordinary care, or held to responsibility for a ■failure to do so, unless it failed to use such care after being aware of plaintiff’s danger.
Many authorities are cited to sustain this view, but none ■of them are applicable to the state of facts before us. 'Where an accident or injury has been caused by the con•curring and approximately simultaneous fault. of both parties, neither can recover from the other, unless the latter, .after being aware of the peril, could, by the exercise of •ordinary care, have avoided the ’injury, or the neglect was ■either willful or gross.
But in this case the facts admitted by the pleadings, and •clearly established by the evidence, show that the appellant had, by its original act of negligence in permitting the •opening in the floor to remain out of repair, rendered it Impossible for it or its agents, who were not present, to become aware of appellee’s peril in time to avoid the injury 'to him. It was, therefore, correct to instruct the jury that 'the ordinary care requisite to avoid the injury must have been exercised by the appellant, with reference to the original and continuing act of negligence, which existed before, ■and was the proximate cause of, the accident by which ■appellee’s"knee-cap was broken and his leg-injured.
These views obviate the necessity of discussing instruction No. 4, which was asked by appellant, and refused by ■the court, as it is opposed to the exposition of the law given in this opinion.
The third instruction confines the jury strictly to compensatory damages, and we have not been shown any error ■even in its verbiage, and certainly not in the law embraced *86by it. As to the first instruction, no objection was made or exception taken to it, and it was given at the instance of appellant, whose criticistn of it cannot therefore be considered by this court.
We may suggest, however, that the clause objected to refers to negligence generally, and. not to any special kind of negligence, and says “it (negligence) may be gross or wanton, and yet not intentional.” This seems to be correct, and what the instruction really means.
Wherefore, the judgment is-affirmed.