Schacht Motor Tr. Co. v. Cleveland C. C. & St. L. Ry.

In the previous opinion of Feb. 20, 1924, this court held that contributory negligence of a bailee cannot be pleaded as a defense to-an action by the bailor for dameges to the thing bailed, except it be by the negligence of a third person. The attention of the court is directed to the fact that although the issue of contributory negligence may be involved in evidence, that where each of the parties charges sole negligence upon the other, the issue of contributory negligence is not raised in the pleading.

A second defense of the answer alleges that the collision was caused “solely” by the negligence of the plaintiff’s bailee, and is in effect therefore that the railway was not at fault. For the purposes of the demurrer, statement in the answer that the collision was caused solely by the negligence of plaintiff’s bailee and not by negligence of the defendant, must be taken as true, and the answer states a good defense, and the demurrer must be overruled.