though the degrees of care owed by each company to the deceased were not the same.114 But a street-railroad company is not liable for injuries incurred on a "switchback" located in a pleasure resort owned by the street-railroad company, where the "switchback" was not dangerous in itself, and the plaintiff had knowledge of the purpose thereof.115 § 7440. Liability as between Municipal Corporations and Other Persons. It has been held that where a city and an abutting lotowner are both obliged to maintain a sidewalk in a safe condition, they may be sued either jointly or severally for injuries resulting from the unsafe condition of the walk;116 and if a city charter requires that the property-owner be joined in an action for damages, such a property-owner must be made a party defendant if the injury resulted through his negligence.117 The rule as to joint tort-feasors applies as between the city and the property-owner, where both are guilty of negligence with respect to a street and sidewalk of the city; and they are jointly liable for injuries resulting therefrom.118 But it has been held that the lot-owner need not be joined as a party defendant in an action for injuries occasioned by a defective sidewalk put down by the lot-owner.119 As between a city and a street-railroad company, the city cannot be sued alone for damages resulting from defects in the portion of the street occupied by the railroad-tracks, where it is the duty of the street-railroad company to keep such portion of the street in repair.120 A bondsman of a contractor may properly be joined as a party defendant with the city in an action. for damages resulting to the plaintiff from injuries caused by falling into a street excavation dug by the contractor, and resulting from his negligence, although the amount claimed is larger than that named in the bond.121 In an action for damages occasioned by a defective 114 Fort Worth St. R. Co. v. Furguson, 9 Tex. Civ. App. 610; s. c. 29 S. W. Rep. 61; Sternfels v. Metropolitan St. R. Co., 174 N. Y. 512; s. c. 66 N. E. Rep. 1117; aff'g s. c. 73 App. Div. (N. Y.) 494; 77 N. Y. Supp. 309. 115 Knattnerus v. North Park St. R. Co., 93 Mich. 348; s. c. 53 N. W. Rep. 529; 17 L. R. A. 726. 116 Dutton v. Lansdoune Borough, 44 W. N. C. (Pa.) 290. 117 Mancuso v. Kansas City, 74 Mo. App. 138. But if an action has been brought against both the city and the property-owner, and the plaintiff dismisses as to the property. owner, and the city files an answer and goes to trial, the city thereby waives the right to have the property-owner made a party defendant: Mancuso v. Kansas City, supra. 118 Peoria v. Simpson, 110 Ill. 294; s. c. 51 Am. Rep. 683; Severin v. Eddy, 52 Ill. 189; Morton v. St. Louis, 97 Mo. 537; s. c. 11 S. W. Rep. 242; Davenport v. Ruckman, 37 N. Y. 568; aff'g s. c. 23 N. Y. Super. 20. 119 Topeka v. Sherwood, 39 Kan. 690; s. c. 18 Pac. Rep. 933. 120 Lavigne V. New Haven, 75 Conn. 693; s. c. 55 Atl. Rep. 569; Cline v. Crescent City R. Co., 41 La. An. 1031; s. c. 6 South. Rep. 851. 121 Donovan v. Oswego, 42 App. highway, it was held that the town marshal, who was ex officio street commissioner, and the board of town trustees, might be joined as parties defendant.122 So, where an injury has resulted from the defective condition of a street, the town marshal, his bondsmen, and the board of town trustees may be sued for resulting damages.123 But where a town appointed a committee to improve a pond as a watersupply for the town, and the committee engaged a contractor to clear a piece of ground owned by the town, and by the negligence of the contractor, while clearing the ground, fire escaped to the premises of an adjoining owner and damaged him, it was held that the committee. was not liable for the damages. 124 And where a city entered into a contract with the owner of a building and premises by which the city and others were to finish the upper story of the building, but the city did not own or control the lot or lower story of the building, the city is not liable for injuries inflicted upon one during the construction of the basement of the building, over which it had no authority or control.125 In Wisconsin, to render a town or city liable for an injury sustained on a defective highway, it must have been sustained by a traveller; and a person who left the highway, not from necessity, but merely because the "wagon track was muddy and slippery, and the turf was pleasanter walking," was held not to be a traveller on such highway so as to render the town liable.1 Div. (N. Y.) 539; s. c. 59 N. Y. Supp. 759. 122 Doeg v. Cook, 126 Cal. 213; s. c. 58 Pac. Rep. 707. 12 Doeg v. Cook, 126 Cal. 213; s. c. 58 Pac. Rep. 707. 126 124 Wright v. Halbrook, 52 N. H. 120; s. c. 13 Am. Rep. 12. 125 El Paso v. Causey, 1 Ill. App. 531. 128 Hawes v. Fox Lake, 33 Wis. 438. CHAPTER CXCIX. GENERAL PRINCIPLES OF PLEADING. SECTION 7444. Effect of abolition of common law methods of pleading. 7445. Form tions. 7446. Pleadings must state facts, and not conclusions of law. 7447. Particularly of averment of negligence. 7448. Examples of pleadings wanting in particularity. 7449. Examples of pleadings not open to this objection. 7450. Matters necessarily inferred. 7451. Alternative averments. 7452. Control SECTION 7466. Averment that injury could have been avoided by the use of due care by defendant after discovery of plaintiff's peril. 7467. Joinder of causes of action. 7468. Effect of joinder in caption but not in body of complaint. 7469. Pleading statutes. 7470. Pleading ordinances. 7471. Averring one kind of negligence and recovering on another-Variance. as between general 7472. Variance as to time and place 7455. Forms of action-"Trespass" 7475. Manner of pleading statutory 7461. Motion to make more specific. 7479. Allegation of fact of consoli7462. Bill of particulars. 7463. Whether contributory negli gence should be negatived. 7464. Where contributory negligence is apparent on the face of the complaint. 7465. "Willful" and "gross" negli gence. dation of corporations after infliction of injury. 7480. Reply-Departure. 7481. Intendment after verdict. § 7444. Effect of Abolition of Common-Law Methods of Pleading.— The abolition of the common-law methods of pleading and the introduction of the code in many of the States have rendered obsolete many of the old rules, and a mass of technical discussions with which the earlier cases are filled. The changes thus wrought are radical, and the most immediate result is a general confusion in the decisions of the courts which attempt to construe the provisions of the codes. In the limited space available for the treatment of this subject it is possible only to advert to a few of the fundamental rules which must form the basis of every system of pleading, considered more particularly with a view to their application to actions for injuries by negligence. The object of pleading being to form an issue, either (1) of fact for the determination of the jury, or, (2) in the event of the facts being admitted, of law for the consideration of the court, it follows that such averments, and such only, should be included in the pleadings as are conducive to that end. Therefore the declaration, petition, or complaint, as it is differently entitled under different systems, should contain an allegation of every fact which is necessary and material to the plaintiff's recovery; in other words, of such facts as, if they were admitted, would justify the court in rendering judgment for the plaintiff.1 "The cases in the books seem to be very explicit that no judgment can be sustained, even after verdict, unless the declaration shows every fact that is essential to the right of action; and though this is a technical rule, it is not unsupported by reason, for there will be nothing on the record to show that the plaintiff is entitled to any damages, and it cannot be presumed that facts not stated have been proved unless they are of a nature to have been necessarily inferred from those which are alleged.” § 7445. Form-Certainty-Illustrations.-Among the rules of pleading which remain unchanged by the introduction of the code and which must, from its nature, appertain to any system of pleading, is the requirement that pleadings must be certain. The rule does not demand grammatical nicety and precision; and an averment the obvious sense of which is to charge negligence will suffice though grammatically incorrect. With regard to certainty, as to what will be considered a sufficiently clear, logical, and certain statement of the facts constituting the injury complained of, it is, of course, im 'Ross v. Clinton, 46 Iowa 606; Louisville &c. Canal Co. v. Murphy, 9 Bush (Ky.) 529; Quick v. Hannibal &c. R. Co., 31 Mo. 399; West v. Hannibal &c. R. Co., 34 Mo. 177; Shartle v. Minneapolis, 17 Minn. 308. 2 Williams v. Hingham &c. Turnpike, 4 Pick. (Mass.) 345, per Parker, C. J. 3 Parsons v. Mayfield, 73 Mo. App. 309. In actions to recover for personal injuries, the allegations of the declaration should be as definite and precise as the nature of the case will reasonably permit: Lee v. Reliance Mills Co., 21 R. I. 322; s. c. 43 Atl. Rep. 536. possible to lay down a general rule, and it is necessary to resort to illustrations to give a clear idea of the doctrines held by the courts on this subject. Thus, where the complaint in an action for an injury to a domestic animal, consequent upon the neglect of the defendant, a railroad company, to maintain the statutory fence, alleged that plaintiff's horse escaped from plaintiff's pasture and "went at large, and by means of going at large as aforesaid, the horse was greatly injured, damaged, and destroyed, whereby," etc., two objections were urged by the defendant to this plea: 1. That it stated the injury, not as the result of defendant's negligence, viz., the failure to maintain a proper fence, but as the consequence of something else, viz., "by means of going at large"; 2. That the declaration was uncertain in not stating in greater detail how the going at large caused the injury to the horse. The first of these objections the court considered was not well taken, saying that the statement was in the order of occurrence, and that the objection could not be made good without the severance of the last averment from the one preceding it, with which it was naturally connected. The second objection was considered more effectual. "The going at large may have existed, and also the injury, and yet the one have had nothing to do with the other. The facts which connected the two, being material and traversable, ought to have been stated in the declaration. The defect is, that the declaration alleges, generally, that by means of the going at large the horse got injured, when it should have set forth particularly in what manner and by what means the going at large produced the injury." The court held, however, that the defect was such as was cured by the verdict. In an action for injuries caused by falling into an excavation upon a lot alleged to be the property of the defendant, the declaration, after averring that there was a public highway across said lot, further alleged, not that the defendants cut the excavation, or left it in a condition dangerous to persons passing along the highway, but that they permitted others. so to do. On demurrer, it was held that the plea was defective in not stating definitely how the defendants "permitted" the act complained of. Where the action was for an injury to plaintiff's horses, wagon, and harness, consequent upon a defect in a turnpike, an allegation that the damages were sustained "by reason of the road being out of repair, and the badness thereof," was equivalent to a general allegation of insufficiency, and was supported by evidence of insufficiency in the original construction of the road. In the same case, 4 Holden v. Rutland &c. R. Co., 30 Vt. 302. Maenner v. Carroll, 46 Md. 193. |