Page:Federal Reporter, 1st Series, Volume 4.djvu/782

 768 FEDERAIi EEPORTEB. �Miller v. Union Pac. Ey. Co. �{Oireuît Court, D. Colorado. November 20, 1880.) �1. Pleading — Nbgligbncb— CoNTRiBUTOKY NegiiIgbkce. — The plain- ti£E, an employe of the defendant raiiroad, brought an action against the Company for injuries sustained while riding down a steep grade In what he called in his petition a " push-oar or hand-car." MAd, that the petition was defective for uncertamty — {1) In that It did not describe the car with greater particularity ; (2) in that it did not state ■whether the car was with or without hrakes ; (3) in that it did not Btate that cars such as the one plaiutiS was riding in when injured are usually supplied with brakes. �For these reasons a demurrer to the petition was sustained, but leave was given to amend. �Demurrer. �Qco. H. Grey and T. A. Green, for plaîntiff. �H. M. d Wiïlard Teller, for defendant. �McCraey, C. J. This is a case in which the plaîntiff sues to recover damages for an injury received while riding on what he calls in his petition a "push-car or hand-car." It is alleged that he was employed as a carpenter for the defend- ant Company, and was furnished with a car to carry his tools and transport himself f rom the station on the main line along a side-track or branch roadto a ooal station; that he went up on this car. It is not stated in the petition whether he pushed it ; but it is alleged that when he came to return he and several others got aboard the car and started down the track, which was of a very steep grade, and the car got beyond their con- trol, having no means of retarding its movement, and in jump- ing out of it hewas injured. �The demurer to the petition is upon the ground that plain- tiff's statement of the case in the pleadings shows that he was guilty of contributory negligence. In the courts of the United States, at least, and I think in most if not ail the states, the defence of contributory negligence is a good defence in a casa of this kind. �In the first place, this petition is defective for nncertaînty. ����
 * t up, or whether he rode upon it and somebody else pushed