Day v. Kelly
Montana Supreme Court
Appeal from District Court, Deer Lodge County; Geo. B., Winston, Judge. Aotion by Artemus Day against Bertba Kelly, From a judgment of nonsuit, plaintiff appeals. Appellant contends that under the issues as framed by the pleadings, the defendant admitted that she was negligent in the form and manner set out in plaintiff’s complaint. The first affirmative defense set out by the defendant in her answer is a plea of contributory negligence.
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Appeal from District Court, Deer Lodge County; Geo. B., Winston, Judge. Aotion by Artemus Day against Bertba Kelly, From a judgment of nonsuit, plaintiff appeals. Appellant contends that under the issues as framed by the pleadings, the defendant admitted that she was negligent in the form and manner set out in plaintiff’s complaint. The first affirmative defense set out by the defendant in her answer is a plea of contributory negligence. In Montana the plea of contributory negligence is a plea in confession and avoidance. It has been so held on several occasions and it has been generally so…
1Opinion of the CourtJustice Holloway
On April 30, 1911, plaintiff was riding on horseback driving loose horses along the public road, when he met an automobile *310driven by defendant. His riding horse became frightened, reared and fell, crushing one of plaintiff’s feet and otherwise injuring him. He brought this action to recover damages, and in his complaint charged the defendant with negligence (a) in driving the automobile toward him after she discovered that his horses had become frightened; (b) in failing to turn out of the road; and (c) in causing or permitting the machine to make very loud and unusual noises. Issues were…
2Cases cited15 opinions
- Louisville & Nashville Railroad v. HallSupreme Court of Alabama · 1888
- Birsch v. Citizens' Electric Co.Montana Supreme Court · 1908
- Ball v. GussenhovenMontana Supreme Court · 1904
- Johnson v. Butte & Superior Copper Co.Montana Supreme Court · 1910
- Wastl v. Montana Union Railway Co.Montana Supreme Court · 1900
10 more not listed; retrieve them via the Exa API.
3Cited by12 opinions
- Parsons v. Crown Disposal Co.California Supreme Court · 1997
- Crocker v. JohnstonNew Mexico Supreme Court · 1939
- Hoffman v. Southern Pacific Co.California Court of Appeal · 1927
- Mihelich v. Butte Electric Railway Co.Montana Supreme Court · 1929
- Lewis v. SteeleMontana Supreme Court · 1916
7 more not listed; retrieve them via the Exa API.