switch in the same direction in which he was going, and at the same moment he heard a man "yell," but saw no one. He instantly realized that he would not have time to again reverse his engine and pull out of the way of the car, because before he could stop his engine the car would have "side swiped," and probably have killed him. He instantly opened up the throttle and backed down the track ahead of the car, passing the switch | stand point just in time to avoid being hit by the car. After getting in ahead of the refrigerator car, he slowed down and let the refrigerator car catch up with him and stopped both the car and his engine. The shock of the collision was sufficient to knock appellee off the top of the car when the car collided with the engine. The engine had an ordinary headlight, but did not throw any light upon the top of the approaching car so that the engineer could see any one upon the car. When he first saw the car the front end of the same was practically opposite where he was sitting in the cab. Upon the trial a witness, Abel Benavides, testified that prior to the icing of the car he went up above the ice house and rode the car down and spotted it in front of the ice house, using the brake, and that when the car was spotted he set the brake. On the other hand, appellee testified that the brake was not set when he mounted the car and attempted to release it. After the accident this car. was pushed up on the switch and blocked by the brakeman. Within less than an hour thereafter the car was picked up by an outgoing train and carried to Grand Junction, some 50 miles distant. This particular car reached Grand Junction within less than four hours after the accident, and was there inspected, but the testimony of the inspector shows that he did not try the hand brakes at all, that his inspection lasted about one and a half minutes to the car, but he testified that his inspection showed that the brake rigging on this car was in good shape. The evidence shows that appellee remained on crutches until December 2, 1912, and that since said date he has worked at various jobs. Upon the trial of the case, over the objection of the defendant, the court submitted to the jury both the issue of primary negligence and the "last clear chance" rule. The jury returned a verdict in favor of appellee for $5,000. Motion for a new trial having been overruled, judgment was entered accordingly, from which judgment defendant prayed this appeal. Renehan & Wright, of Santa Fé, and E. N. Clark, of Denver, Colo., for appellant. Edward P. Davies and Catron & Catron, all of Santa Fé, for appellee. ROBERTS, C. J. (after stating the facts as above). [1] The first question discussed by counsel for appellant is the action of the trial court in permitting appellee to file an amended complaint. The amended complaint was filed by leave of court, over appellant's objection, at the conclusion of appellant's case in chief upon the first trial of this case. This appeal is from a judgment rendered upon a retrial of the cause, and appellant concedes that the amendment stands in the same light as though made prior to the trial. We are favored by a very able and thorough discussion of the question as to whether the original complaint stated a cause of action, it being appellant's contention that it did not, and, failing so to do, the court had no power to permit an amended complaint to be filed which did state a cause of action. This question, although very interesting and one upon which much disagreement is to be found in the adjudicated cases, is not before us for consideration, because of the fact that appellant elected not to stand upon his objections to the filing of the proposed amended complaint, but answered the same, and proceeded to trial thereupon. This being so, it waived the alleged error by pleading to the amendment. In 31 Cyc. 751, it is stated: "An objection to the allowance of an amendment should be made when leave to amend is asked, and in order to avail himself of error in granting the amendment the party objecting should stand on the ruling, since he waives the objection by pleading to the amendment, by going to trial thereon, or by otherwise recognizing the amended pleading." The text is sustained by numerous cases. See, also, to the same effect, 1 Ency. Pl. & Pr. 573; McAdow v. Kansas City Western Ry. Co. (Mo. App.) 164 S. W. 188; Rice v. Norfolk-Southern R. Co., 167 N. C. 1, 82 S. E. 1034; American Home Circle v. Schneider, 134 Ill. App. 600; Kansas City Southern Ry. Co. v. Tonn., 102 Ark. 20, 143 S. W. 577. [2] 2. In the amended complaint, upon which the case was tried, appellee alleged facts showing that the brake apparatus with which the car was equipped, which car he was instructed to ride down the switch track and stop at the designated point, was defective, that by reason of such defects so alleged to exist he was unable to stop the car, and that it ran down upon the main track, where it collided with an engine. It will be noted that the defective brake was alleged to have been the proximate and sole cause of the accident by which plaintiff was injured. To this complaint appellant filed an answer in three counts. The first count was a general denial. The second count was as follows: "Defendant denies that the injuries alleged to were by him received, were due to or owing to have been received by plaintiff, if any injuries or caused by any negligence or want of care or caution on the part of the defendant, but, on the contrary, defendant alleges that such alleged, or any, injuries were due to or caused by the negligence, want of care, and caution on the part of the plaintiff himself." The third count pleaded assumption of risk. To this answer appellee filed a reply in which he first denied generally all the allegations of new matter pleaded in the answer, and then, by way of an alternative further reply, he set up the following facts: "(a) That, were all the matters and facts of new matter pleaded in defendant's answer true, that still the defendant, through its employés and agents, knew and realized the dangerous position of the plaintiff, and, knowing and realizing such dangerous position of the plaintiff, failed to use due care to avoid the collision which resulted in the accident and injury to the plaintiff. "(b) That it was the duty of the defendant and its agents and servants and employés to know of the dangerous position of the plaintiff, and, knowing the same, to have avoided it. "(c) That the defendant, through its agents and employés, knowing of the danger of the plaintiff, not only did not avoid the collision, but deliberately caused the same." Appellant objected to the filing of the reply upon two grounds: First, that it was not filed in apt time; and, second, that it was a departure from the complaint. The objections were by the trial court overruled, and the reply was filed. kee & St. Paul Ry. Co. v. Arms, 91 U. S. 489, 23 L. Ed. 374; Chicago, R. I. & P. Ry. Co. v. Hamler, 215 Ill. 525, 74 N. E. 705, 1 L. R. A. (N. S.) 674, 106 Am. St. Rep. 187, 3 Ann. Cas. 42. In the case last cited the question is ably discussed, with copious quotations from the adjudicated cases and textwriters. The court quotes with approval the following from the American & English Encyclopedia of Law, vol. 21, p. 459: found in judicial discussions of the subject to "While not infrequent references are still the classification of negligence into degrees, the tendency of modern authority and the weight of the best-considered cases are now opposed to this view, holding that in every case negligence, however described, is merely a failure to bestow the care and skill which the situation demands, and hence it is more accurate to call it simply negligence. Some decisions even go further, and declare that the classification of negligence into degrees is a matter of pure speculation and of no practical consequence, that. it is useless and tends to confusion, and that, in fact, it is unsafe to base any legal decision on distinctions in the degree of negligence." The distinction between negligence and willful tort was pointed out by this court in the case of Wood v. Sloan, 148 Pac. 507, L. R. A. 1915E, 766. It will be noted that the reply attempts to set up in the same count both "last clear chance," or "supervening negligence" and [4] 4. The doctrine of "last clear chance" willful injury. This evidently was occasionhas no connection or relation whatever to an ed by reason of the pleader's failure to appreciate the distinction which exists between intentional injury. If an injury is intentiona willful injury and an injury due solely to ally and purposely inflicted, the question inadvertence, or, in other words, an injury of negligence does not enter into the inquiry occasioned by the negligence of a party owor have any bearing whatever upon the ining to another exercise of due care and cau-jured party's right to recover damages. Contion. A willful injury is a positive act, while tributory negligence on the part of the inan injury resulting from negligence is a neg-jured party likewise is relegated from the ative act, resulting from the absence of such case; for in such cases it matters not how care as it was the duty of the defendant to negligent or careless the injured party may use. An examination of the cases dealing have been, if the defendant willfully and inwith the subject of negligence will disclose tentionally inflicts injury upon him, he is liathe fact that much confusion exists in re-ble and should respond in damages. On the gard to the question of the varying degrees, other hand, where liability is predicated upon an injury inflicted upon one guilty of negliso termed, of negligence. [3] 3. Many of the courts classify negligence by which he is placed in a perilous gence into three degrees, viz., slight, ordina- position, yet his perilous position is discovry, and gross, and in many instances use the ered by another, or by the exercise of due terms "gross negligence" and "willful tort" diligence the peril of the other should have interchangeably and as synonymous terms. been discovered, such party is bound to In many states the Legislature has, by stat- use reasonable care to avoid the injury. ute, adopted the three degrees, and has de- Where an action is predicated upon an omisfined each degree. In the absence of statute, sion of duty, in such a case it properly behowever, there is no warrant for any such longs to and is classified in the field of negclassification. Actionable negligence has no ligence. To such an action contributory negdegrees. The true rule was announced by ligence on the part of the plaintiff, which the Supreme Court of Indiana in the case of continues concurrently with the negligence of Terre Haute & I. R. Co. v. Graham, 95 Ind. the defendant and contributes proximately 293, 48 Am. Rep. 719, where the court said: to the injury, is a valid defense. In other "Negligence, whether slight, ordinary, or gross, words, in an action predicated upon the docis still negligence. Negligence is nega- trine of "last clear chance," it must appear tive in its nature, implying the omission of duty, that plaintiff was negligent, but that such and excludes the idea of willfulness. * 串 When willfulness is an element in the conduct negligence was not the proximate cause of of the party charged, the case ceases to be one of the accident, but that the proximate cause negligence.' thereof was the negligence or want of due care on the part of the defendant. * * * See, also, to the same effect, Parker v. Pennsylvania Co., 134 Ind. 673, 34 N. E. 504, 23 L. R. A. 552; Louisville, N. A. & C. R. Co. In the present case the parties have treated the reply as proceeding only upon the ing the case, this court will proceed upon the same assumption. [5] 5. This brings us to the inquiry as to whether the reply was a departure from the complaint. Appellee argues that the appellant, in his second defense, quoted supra, set up contributory negligence on the part of plaintiff, as a defense to his complaint, and that his reply amounted to nothing more than a confession and avoidance of that defense. In this he is in error: First, because the answer did not set up contributory negligence; and, second, "last clear chance" is not a defense to contributory negligence. "If the negligence of either plaintiff or defendants is the sole cause of the injury, there could be no contributory negligence in the case." In further support of our position see the Cogdell v. Wilmington & following cases: Weldon Ry. Co., 132 N. C. 852, 44 S. E. 618; Benjamin v. Railroad, 245 Mo. 598, 151 S. W. 91; Cain v. Winterstein, 144 Mo. App. 1, 128 S. W. 274; Ramp v. Met. Street Ry. Co., 133 Mo. App. 700, 114 S. W. 59; Felton v. Aubrey, 74 Fed. 350, 20 C. C. A. 436; H. & T. C. R. R. Co. v. Patterson, 20 Tex. Civ. App. 255, 48 S. W. 747; Scattergood v. Ingrain, 86 Ohio St. 76, 98 N. E. 923. As to the first question it will be observed that the defendant denies that he was guil-ed ty of any negligence or want of care, and alleges that the injury was "due to or caused by the negligence, want of care and caution on the part of the plaintiff himself." amounted to no more than a general denial of the plaintiff's complaint, and did not require a reply. In 29 Cyc. 583, it is said: This "An answer amounting to no more than a denial of defendant's negligence and that it was wholly caused by the negligence of the plaintiff does not require a reply." In volume 5, Am. & Eng. Ency. Pl. & Pr. p. 11, the rule is stated as follows: "The plea of contributory negligence is a plea in confession and avoidance, which admits negligence on the part of the defendant, but seeks to avoid liability therefor by alleging that the plaintiff was guilty of negligence which contributed to his injury, and the plea is bad if it denies that defendant was negligent." In the case of Watkinds v. Southern Pacific Co. (D. C.) 38 Fed. 711, 4 L. R A. 239, the court, in considering a similar answer, said: "This defense confesses nothing, but avers that the defendant was not guilty of negligence, and that the injury sustained by the plaintiff was wholly owing to his own negligence. As I have said, it amounts to nothing more or less than another denial of the allegation in the complaint that the injury in question was not caused by the fault or negligence of the plaintiff [defendant]." In the case of Birsch v. Citizens' Electric Co., 36 Mont. 574, 93 Pac. 940, the answer was in almost the same identical language as in the one now under consideration. The court said: "It goes without saying, then, that an answer which denies any negligence on the part of the defendant, and alleges that the injury resulted wholly from plaintiff's negligence, does not plead contributory negligence; and the defendant, having failed to plead contributory negligence, cannot rely upon it, uniess," etc. [6] 6. But, as both parties evidently treatthis count of the answer as setting up the defense of contributory negligence, we will so assume, and proceed to a consideration of the second point. Appellee, in his brief, quotes from the text of 29 Cyc. p. 583, and by inserting the bracketed words shown below assumes that "willful negligence" and "last clear chance" are synonymous terms. The text quoted is as follows: chance] which, notwithstanding the negligence "Willful negligence of defendant [last clear of plaintiff's intestate [contributory negligence] resulted in injury, must be pleaded by the reply, to be available to overcome a defense of contributory negligence, and is not inferentially pleaded by a general denial of contributory negligence without such affirmative allegations." The text quoted is supported only by one case, if that case can be said to so decide, viz., Ford v. Chicago Ry. Co., 106 Iowa, 85, 75 N. W. 650. In that case the reply to the defense of contributory negligence was a general denial, and the trial court instructed on the theory of "last clear chance." The only question before the court was as to whether, under the pleadings, this instruction was proper, and the court correctly held that it was not, as no such issuance was made by the pleadings. The court was not called upon to decide whether this should have been pleaded in the complaint or the reply, and what was said upon this point may be considered as obiter. Just what is intended by the term "willful negligence," employed in the text quoted, is not clear, but whether it was intended to mean willful and intentional injury, or, as appellee assumes, “last clear chance," is wholly immaterial, as a brief consideration will show. On the assumption that it means a willful tort purposely and intentionally inflicted, it must be remembered that a cause of action based upon negligence and one predicated In the case of Wastl v. M. U. Ry. Co., 24 upon a willful tort are quite different and Mont. 159, 61 Pac. 9, the court said: "Obviously, therefore, the negligent acts of plaintiff and defendant must concur and operate together, each contributing proximately to cause the injury complained of. If this condition does not exist, then there is no question of contributory negligence." In the case of Payne v. C. & A. Ry. Co., 129 Mo. 405, 31 S. W. 885, the court, after quoting Mr. Beach's definition of "contributory negligence," said: distinct. In the former the element of intentional wrong does not enter, but it proceeds upon the theory that the injury was occasioned by reason of some inadvertence on the part of the defendant in a situation where due care and diligence were owing to the plaintiff. In such an action the proximate cause of the injury must necessarily be the inadvertence of the defendant; otherwise there could be no recovery. To an ac "It would also seem on principle that, if there is that variance between simple negligence and wanton or willful injury that proof of the former will not sustain a complaint charging the latter, a replication to a plea of contributory negligence averring willful and intentional injury would be a departure from a complaint charging simple negligence." In the case of Alabama Great Southern Railroad Co. v. Hall, Adm'r, 105 Ala. 599, 17 South. 176, the complaint counted on simple negligence; the defendant pleaded contributory negligence. To this plea the plaintiff replied that the engineer was guilty of "gross, wanton, and reckless negligence in running the engine at too great a rate of speed." The court said: tion of this character a defendant may plead | In the case of Louisville & Nashville Railcontributory negligence on the part of plain-road Company v. Markee, Adm'r, 103 Ala. tiff which, concurring and co-operating with 160, 15 South. 511, 49 Am. St. Rep. 21, the defendant's negligence, proximately contrib-court said: uted to the injury, and, if such fact be proved, it will defeat a recovery. In such a case, looking only to the ground upon which the plaintiff bottoms his right to recover, it must be apparent that the inquiry would be limited to the question as to whether the agency which the plaintiff alleges was responsible for his injury was solely responsible therefor, or did some act or omission on the part of the plaintiff which, under the circumstances, he should have refrained from doing, or should have done, enter into and directly and conjointly with defendant's act or omission produce or cause the resulting injury. If some other act of omission or commission on the part of the defendant caused the injury, how can it be logically said that such other act, if pleaded and proved, would avoid the concurring negligence of the plaintiff, and permit him to recover upon the complaint? If the facts set forth in his complaint are met and counterbalanced by the proof of contributory negligence, that must be an end to that act of negligence on the part of the defendant. If some subsequent negligent or willful act on the part of the defendant intervenes, and is the active, moving, and proximate cause of the injury, without which the same would not have occurred, it must be true that the right of recovery would rest solely upon such last negligent act or willful tort without further relation to the original negligence of either party, save as such prior negligence might be shown as a fact in the case, for the purpose of explaining how the plaintiff came to be in the situation he was at the time of the injury, where his right of recovery is based upon the theory of "last clear chance" or "willful tort." In an action based upon an intentional and willful injury, as stated, it matters not how careless and negligent the plaintiff may have been, as such carelessness and negligence on his part would not justify the defendant in inflicting upon him an intentional injury. In such a case the wrong complained of is the injury purposely inflicted, to which the prior negligence of either party has no relation, except perhaps to explain the plaintiff's presence at the place of the infliction of the injury. In such a case the party would not base his right to recover upon any negligence or want of care on the part of defendant which might have been the remote cause of the injury, but upon the willful wrong of the defendant which was the proximate cause thereof. If it be taken for granted that the Iowa court held that "willful injury" could be pleaded in a reply, in confession and avoidance of an answer alleging contributory negligence, direct authority to the contrary is "If by the replication it was intended to aver no other than simple negligence, as charged in the complaint, the replication did not answer the plea. On the other hand, if the replication averred wanton or willful wrong, the replication was a departure from the original cause of action, and upon objection should have been rejected." See, also, George v. Mobile & Ohio R. R. Co., 109 Ala. 245, 19 South. 784. On the other hand, if we assume that the reply attempts only to set up the doctrine of "last clear chance," appellee's position is not improved. It is not true, as argued by appellee, that "last clear chance" is a defense to contributory negligence, and can only be properly pleaded in a reply to an answer setting up contributory negligence as a defense. Contributory negligence, as stated, is as valid and complete a defense to an action founded upon that doctrine as it is in any other branch of the law on negligence, where such contributory negligence of the plaintiff continued concurrently with the negligence or want of care on the part of the defendant, and, together with the negligence of the defendant, contributed to the proximate cause of the injury, and without tinues up to the very moment of the injury fendant actually saw or knew of the danger to which the plaintiff was exposed, and also knew or should have known that the plaintiff was unconscious thereof, and the defendant failed to use due diligence to avoid the injury, the plaintiff would be entitled to recover. Union Traction Co. v. Bowen, 57 Ind. App. 661, 103 N. E. 1096. relegates both the primary negligence of the defendant and the contributory negligence of the plaintiff to the background. In other words, the prior negligence of, both parties is eliminated as a direct proximate cause of the injury, and the right to recover rests solely upon an altogether new and distinct act of negligence on the part of the defendant, upon which plaintiff must recover, if a recovery is to be had. "We have not been cited to any authority, nor do we know of any, holding that affirmative reas we understand it, that a set-off or counterlief may be granted upon a reply. The rule is, claim may be utilized, by way of reply, to defeat any affirmative matter set up by way of answer, but such set-off or counterclaim cannot, by way of reply, be made the subject of a substantive claim upon which a judgment may be based." In the case of Moss v. Fitch, 212 Mo. 484, 111 S. W. 475, 126 Am. St. Rep. 568, the Supreme Court of Missouri quoted with approval the following excerpt from the case of Crawford v. Spencer, 36 Mo. App. 78: Appellee mistakenly assumes that his right to recover is based upon the primary negligence of the defendant in putting him That a plaintiff is not entitled to affirmto work upon a car equipped with a defec-ative relief upon a reply is well settled by tive brake; whereas, if the matters set up the adjudicated cases. In the case of Small in the answer are true, and likewise the v. Kennedy, 137 Ind. 299, 33 N. E. 674, 19 allegations of the reply are also true, then L. R. A. 337, the court said: his cause of action must necessarily be predicated upon the negligence of the engineer in failing to use due care to avoid running his engine into the car upon which appellee was riding. In such case the negligence of the engineer was the sole, proximate cause of the accident, and the antecedent negligence of the defendant and the plaintiff was the remote cause of the remote events which co-operated to bring the plaintiff into the perilous position where he was injured by reason of the intervening negligence of the defendant. This is clearly evidenced by the cases collected in the case note to Dyerson v. U. P. R. R. Co., 7 L. R. A. (N. S.) 132. See, also, subdivision VIII, note to case of C., C., C. & St. L. Ry. Co. v. Means, 5 Neg. Com. Cases, Ann. 101, and note to case of Bogan v. C. C. R. R. Co., 55 L. R. A. 418. [7] Therefore, if plaintiff recovers in this case, his right to so do, assuming that the allegations of his reply are true, and that he was guilty of contributory negligence in the first instance, as alleged in the answer, must rest upon proof of the facts alleged in his reply; in other words, he must recover upon his reply, and not upon his complaint. It is elementary that a party cannot sue for the breach of one duty and recover for the breach of another. See opinion by Judge Cooley in the case of F. & P. M. Ry. Co. v. Stark, 38 Mich. 714. In this case if the plaintiff is to recover upon the doctrine of "last clear chance," it is apparent that he would be recovering upon his reply, and not upon his original complaint. This he cannot do. Of course, a party may plead any matter by way of reply which avoids the answer, but in such a case the party does not predicate his right to a recovery upon his reply, but simply obviates the effect of the answer interposed to his complaint, and leaves his right of recovery upon the original complaint unaffected by the answer. The reply to an answer setting up contributory negligence, as in this case, to the primary negligence of the defendant, which bases a right of recovery upon the doctrine of "last clear chance," does not avoid the effect of the answer in so far as such primary negligence is concerned, but sets up an independent right of recovery, which "A party must, under our system of pleading, recover upon the cause of action stated in his petition, and he cannot recover upon a cause of statute above quoted was not, we think, intendaction stated in his reply. The provision of the ed to change the office of a reply, which is that of a denial or a confession and avoidance of matter set up in the answer." And also the following from the case of Stepp v. Livingston, 72 Mo. App. 179: "If it were disclosed by the record that the plaintiff recovered on a cause of action stated in his reply, but not in his petition, it would be our duty to reverse the judgment." In the same cause the court quoted, with approval, the following excerpt from 18 Ency. Pl. & Pr. 690: "The plaintiff cannot introduce in his reply a cause of action different from that which he states in his complaint or petition; in other words, he cannot after answer is made abandon the cause of action set up in the complaint and make an entirely new cause of action in the reply." In the case of Hastings School District v. Caldwell, Hamilton & Co., 16 Neb. 68, 19 N. W. 634, the court quoted with approval the following excerpt from Maxwell's Code Pleading & Practice, 108: action stated in his petition. It is not the prov"A plaintiff can recover only on the causes of ince of a reply to introduce new causes of ac tion. This can be done only by amendment of the petition." To the same effect see, also, the following: Plummer, Perry & Co. v. Rohman, 61 Neb. 61, 84 N. W. 600; Jones v. Marshall, 56 Iowa, 739, 10 N. W. 264; Marder, Luse & Co. v. Wright, 70 Iowa, 42, 29 N. W. 799; Eskridge v. Ditmars & Co., 51 Ala. 245. [8] 8. In Bliss on Code Pleading (3d Ed.) § 396, the author says: |