it was urged that the declaration was insufficient because it did not state the particular place where the injury occurred, nor the respect in which the road was out of repair. Said the court: "No reason is shown or perceived why this should be necessary, but, if necessary, it would be cured by verdict." In another case, it was alleged that "there was a large stump in or near the middle of the main travelled track of said road," against which plaintiff's wagon struck, causing the injury complained of. The court held that the word "stump" must be understood as here meaning "that portion of the tree remaining in the ground after the stem or trunk is cut off," which is its usual signification; and that the complaint sufficiently alleged a defect in the highway. A declaration alleging a failure to keep a highway in repair, setting out a defect "at a certain place near the house of K.," was held not to describe sufficiently the spot where the accident occured. In an Illinois case, however, a declaration in an action for an injury consequent upon a defective sidewalk, which described the place where the injury occurred as a street of the city known as Jefferson Street, was held sufficient."

8

§ 7446. Pleadings must State Facts, and Not Conclusions of Law. -A pleading must state facts; and if it avers conclusions of law, it is to that extent bad. It does not follow, however, that because negligence is a mixed question of law and fact, a general allegation of negligence is pleading a legal conclusion only. "The facts necessary to be pleaded are not merely physical facts. It is not allowable to plead mere abstract conclusions of law, having no element of fact, -they form no part of the allegations constituting a cause of action; but if they contain the elements also of a fact, construing the language in its ordinary meaning, then force and effect must be given them as allegations of fact,-as, where necessaries are furnished to an infant, or where a deed or mortgage is alleged to have been made, or the ownership of property is asserted, the general allegation is sufficient, being the ultimate fact to be established by evidence. To allege more, would be to plead the evidence, which is not allowable." A complaint showing the particular damages to live stock

Noyes v. Turnpike Co., 11 Vt. 536.

See also, Corey v. Bath, 35

N. H. 530.

Cremer v. Portland, 36 Wis. 92. Kellogg v. Northampton, 4 Gray (Mass.) 69.

'Springfield v. Doyle, 76 Ill. 202. 10 Grinde v. Milwaukee &c. R. Co., 42 Iowa 376, per Rothrock, J. Šee also, Oldfield v. New York &c. R.

Co., 14 N. Y. 310; Chiles v. Drake, 2 Metc. (Ky.) 146; Hoffman V. Tuolumne County Water Co., 10 Cal. 413. A declaration which charges the defendant with having negligently driven his cart against plaintiff's horse is supported by evidence that defendant's servant drove the horse: Brucker v. Fromont, 6 Term 659.

in transit, and alleging that plaintiff, within five days after said damages were sustained, made his claim in writing therefor "as provided in the contract of shipment," has been held to aver a fact and not a conclusion of the pleader.11 In an action for injuries to stock on railroad-tracks by railroad-trains, it has been held that the words, “That at the time and place when and where said stock was so run over and killed as aforesaid, the said railroad was not securely fenced as required by law," were a sufficient averment of a failure of the statutory duty to maintain fences. The words, "not securely fenced as required by law," allege a fact and not a conclusion of law.12 But in an earlier case in the same State, the averment that at the place, etc., "defendant's road was not fenced as required by law" was held to be bad upon demurrer.13 The following allegations have been held to violate the rule against pleading conclusions:-A plea averring lack of power and means to repair the defective sidewalks of a city ;1a an averment in an answer by a carrier sued for delay that the delay was caused by a mob or strike too strong for it to overcome;15 an allegation, in an action against a locomotive engineer and the railroad company for injuries suffered by an employé, that the acts were the result of the joint negligence of the railroad company and the engineer16 an averment in a complaint for injuries sustained at a railroad crossing that plaintiff did not have time or opportunity to know or observe the approach of the rear portion of a train, which had been detached from, and was following its engine.17 The ground of these rulings is, that the averment is of a conclusion of law, rather than of a fact. It is upon this principle that an allegation that the defendant was under a certain named duty to the plaintiff (or deceased) is of no value in a pleading."

11 Cleveland &c. R. Co. v. Heath, 22 Ind. App. 47; s. c. 53 N. E. Rep. 198.

12 Jeffersonville &c. R. Co. v. Chenoweth, 30 Ind. 366; Indianapolis &c. R. Co. v. Adkins, 23 Ind. 340. See also, Indianapolis &c. R. Co. V. Petty, 30 Ind. 261; Pittsburg &c. R. Co. v. Brown, 44 Ind. 409; Indianapolis &c. R. Co. v. Lyon, 48 Ind. 119; Indianapolis &c. R. Co. v. Truitt, 24 Ind. 162; Pittsburg &c. R. Co. v. Keller, 49 Ind. 211.

13 Indianapolis &c. R. Co. V. Bishop, 29 Ind. 202. See also, Jeffersonville &c. R. Co. v. Underhill, 40 Ind. 229; Indianapolis &c. R. Co. v. Robinson, 35 Ind. 381.

14 Lord v. Mobile, 113 Ala. 360; s. c. 21 South. Rep. 366.

.14

15 Louisville &c. R. Co. v. Bell, 13 Ky. L. Rep. 393.

16 Warax v. Cincinnati &c. R. Co., 72 Fed. Rep. 637.

17 Indianapolis &c. R. Co. v. Wilson, 134 Ind. 95; s. c. 33 N. E. Rep. 793.

18 Kansas City &c. R. Co. v. Burton, 97 Ala. 240; s. c. 53 Am. & Eng. R. Cas. 115; 12 South. Rep. 88; Matz v. Chicago &c. R. Co., 88 Fed. Rep. 770; Chicago v. Apel, 50 Ill. App. 132; Clyne v. Helmes, 61 N. J. L. 358; s. c. 4 Am. Neg. Rep.. 180; 39 Atl. Rep. 767; 3 Chic. L. J. Wkly. 150; Sammins v. Wilhelm, 6 Ohio C. C. 565; Brown v. Mallett, 5 C. B. 599; Seymour v. Maddox, 16 Q. B. 326.

§ 7447. Particularity of Averment of Negligence. The rules of some courts have made it a nice question how far the party charging negligence is bound to go in his pleadings in particularity of statement in setting forth the facts of which the alleged negligence con- .. sists. The general rule is easily stated: ultimate facts only are to be pleaded and it is not good pleading to plead matters of evidence.1o

But the application of the rule involves difficulty. It would not involve much difficulty if there was not so much of a tendency on the part of some courts to eliminate common sense from the decision of technical questions of legal procedure. If the pleading fairly informs the opposite party of what he is called upon to meet, and the specific acts of negligence are followed by a general statement that the acts were negligently done;20 or if it fails to state these facts with particularity and the opposite party nevertheless fails to claim a surprise or take the necessary steps to extricate himself from the difficulty, there ought not to be much trouble about the question.21 Very plainly the pleader should set out the acts or omissions of the defendant upon which he bases his right to recover, and should show that they occurred through or by the negligence of the defendant;22 and this statement will suffice if it is in traversable

20 Lang v. Brandy, 73 Conn. 707; s. c. 49 Atl. Rep. 199; Louisville &c. R. Co. v. Jones, Fla. -; s. c. 34 South. Rep. 246; Walsh v. Western R. Co., 34 Fla. 1; s. c. 15 South. Rep. 586; Chicago &c. R. Co. v. Kreig, 22 Ind. App. 393; s. c. 53 N. E. Rep. 1033; Indianapolis &c. R. Co. v. Keely, 23 Ind. 133; Kessler v. Leeds, 51 Ind. 212; Ohio &c. R. Co. v. Selby, 47 Ind. 471; Pittsburg &c. R. Co. v. Nelson, 51 Ind. 150; St. Louis &c. R. Co. v. Mathias, 50 Ind. 66; Rolseth v. Smith, 38 Minn. 14; Stendal v. Boyd, 67 Minn. 279; s. c. 69 N. W. Rep. 899; Lee v. Publishers, 155 Mo. 610; s. c. 56 S. W. Rep. 458; Hudson v. Wabash &c. R. Co., 32 Mo. App. 667; Davey v. Erie R. Co., 69 N. J. L. 50; s. c. 54 Atl. Rep. 233; Conley v. Richmond &c. R. Co., 109 N. C. 692; s. c. 14 S. E. Rep. 303; New York &c. R. Co. v. Kistler, 66 Ohio St. 326; s. c. 64 N. E. Rep. 130. See Grinde v. Milwaukee &c. R. Co., 42 Iowa 376. In an action to recover damages for negligence, "the cause of action," as used in pleading, is not the injury wrongfully inflicted through defendant's negligence, but is the fact or facts that justify the action, or show the right to maintain it: Box v. Chicago &c. Co., 107 Iowa 660; s. c. 78 N. W. Rep. 694.

21 Georgia &c. R. Co. v. Propst, 83 Ala. 518; s. c. 4 South. Rep. 711; s. c. aff'd, 90 Ala. 1; 7 South. Rep. 635; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24; s. c. 33 Atl. Rep. 533; Citizens' Street R. Co. v. Lowe, 12 Índ. App. 47; s. c. 39 N. E. Rep.

165; Toledo Electric Street R. Co. v. Tucker, 13 Ohio C. C. 411; s. c. 7 Ohio Dec. 169.

22 Georgia Pac. R. Co. v. Davis, 92 Ala. 300; s. c. 9 South. Rep. 252; Jacobson v. Dalles &c. Nav. Co., 93 Fed. Rep. 975; Savannah &c. R. Co. v. Geiger, 21 Fla. 669; Chicago &c. R. Co. v. Harwood, 90 Ill. 425; Funk v. Piper, 50 Ill. App. 163; Pennsylvania Co. v. Marion, 104 Ind. 239; s. c. 2 West. Rep. 234; Peerless Stone Co. v. Wray, 10 Ind. App. 324; s. c. 37 N. E. Rep. 1058; Thompson v. Flint &c. R. Co., 57 Mich. 300; s. c. 23 N. W. Rep. 820; Crane v. Missouri &c. R. Co., 87 Mo. 588; s. c. 3 West. Rep. 925; Harrison v. Missouri &c. R. Co., 74 Mo. 364; Waldhier v. Hannibal &c. R. Co., 71 Mo. 514; Munnuci v. Philadelphia &c. R. Co., 68 N. J. L. 432; s. c. 53 Atl. Rep. 229; Race v. Easton &c. R. Co., 62 N. J. L. 536; s. c. 41 Atl. Rep. 710; Tuchochi v. Cincinnati St. R. Co., 7 Ohio Dec. 219; Woodward v. Oregon R. &c. Co., 18 Or. 289; s. c 22 Pac. Rep. 1076; McPherson v. Pacific Bridge Co., 20 Or. 486; s. c. 26 Pac. Rep. 560; Laporte v. Cook, 20 R. I. 261; s. c. 38 Atl. Rep. 700; Misouri &c. R. Co. v. Hennessey, 75 Tex. 155; s. c. 12 S. W. Rep. 608; 42 Am. & Eng. R. Cas. 225. An allegation that plaintiff's child was seriously injured and permanently crippled through defendant's negligence is sufficient. The alleged injuries or the manner in which she was injured or crippled need not be described: San Antonio Street R. Co.

form,23 unless the act or omission set out can be declared as a matter of law not to constitute negligence.24 Where the negligent act or acts are fairly set out, it is generally regarded as unnecessary to aver that they constitute negligence.25 It is not necessary that the degree of negligence should be alleged as that matter will be determined by the facts set out. An allegation that an act was negligently done will allow proof that the negligence was gross.26 In a late case in Massachusetts, in an indictment for a penalty under the statute of that State, for the death of a passenger, the negligence and carelessness alleged were that the defendant permitted his boat to be defective and unsafe and furnished it with a defective hurricane deck, and permitted too many passengers "to go, be, and remain on said hurricane deck," and it appeared that the death of the particular passenger was caused by the breaking down of this hurricane deck through its being overloaded with passengers. It was held that this was a good plead

v. Muth, 7 Tex. Civ. App. 443; s. c. 27 S. W. Rep. 752. Negligence on the part of the defendant is the gist of the action, and must be charged in the plaintiff's petition: Indianapolis &c. R. Co. v. Williams, 15 Ind. 486; Jeffersonville &c. R. Co. v. Martin, 10 Ind. 416; Terre Haute &c. R. Co. v. Smith, 19 Ind. 42; Toledo &c. R. Co. v. Eidson, 51 Ind. 67; Toledo &c. R. Co. v. Weaver, 34 Ind. 298; Wright v. Indianapolis &c. R. Co., 18 Ind. 168; Ranson v. Labranche, 16 La.. An. 122; Brown v. Hannibal &c. R. Co., 33 Mo. 309; Dyer v. Pacific R. Co., 34 Mo. 127; Quick v. Hannibal &c. R. Co., 31 Mo. 399. But the act, the negligent doing of which caused the injury, must be stated. A bare allegation that the party was negligent is too general to support any evidence: Jeffersonville &c. R. Co. v. Dunlap, 29 Ind. 426. In an action for damages from fire, caused by the alleged negligence of defendants in installing an electric motor and appliances in plaintiffs' building, it is necessary for the plaintiffs to develop some theory as to how the fire was caused, and furnish proofs to support the theory: Hawes v. Warren, 119 Fed. Rep. 978.

1 Pen. (Del.) 452; Taylor v. Felsing, 164 Ill. 331; s. c. 45 N. E. Rep. 161; aff'g s. c. 63 Ill. App. 624; Blue v. Briggs, 12 Ind. App. 105; s. c. 39 N. E. Rep. 885; Brown v. Hannibal &c. R. Co., 33 Mo. 309; Dyer v. Pacific R. Co., 34 Mo. 127; Gann v. Chicago &c. R. Co., 72 Mo. App. 34; Quick v. Hannibal &c. R. Co., 31 Mo. 399; Chicago &c. R. Co. v. Young, 58 Neb. 678; s. c. 79 N. W. Rep. 556; Burdick v. Worrall, 4 Barb. (N. Y.) 596; Missouri &c. R. Co. v. Overfield, 19 Tex. Civ. App. 440; s. c. 47 S. W. Rep. 684; San Antonio St. R. Co. v. Caillouette, 79 Tex. 341; s. c. 15 S. W. Rep. 390; Geneva v. Burnett, 65 Neb. 464; s. c. 91 N. W. Rep. 275. Where a declaration undertakes to set forth the acts relied on as a cause of action, without stating that they were negligently done, it must appear from the direct averments of the declaration that the acts causing the injury were per se the result of negligence, or negligence must appear from a statement of such facts as certainly raise the presumption that the injury was the result of defendant's negligence: Consumers' Electric Light &c. Co. v. Pryor, 44 Fla. 354; s. c. 32 South.

Brothers v. Rutland R. Co., 71 Rep. 797. Vt. 48; s. c. 42 Atl. Rep. 980.

"International &c. R. Co. v. Downing, 16 Tex. Civ. App. 643; s. c. 41 S. W. Rep. 190.

"King v. Wilmington &c. R. Co.,

20 Shumacher v. St. Louis &c. R. Co., 39 Fed. Rep. 174; s. c. 17 Wash. L. Rep. 550; Cleveland &c. R. Co. v. Asbury, 120 Ind. 289; s. c. 22 N. E. Rep. 140.