ing. The prime cause of the injury was in the company's not having a sufficient force of men to keep back an excessive crowd which came upon the boat; but as the duty was a general one to prevent by all reasonable and proper means the dangerous overcrowding of the hurricane deck, it was not necessary to descend into further particulars and allege how the defendant came to fail in this duty, for that would have been pleading the evidence.27 Such an indictment, it has been held, need not set out the names of those servants or agents of the defendant who were guilty of the alleged negligence, nor the nature or the manner of such negligence, nor the names of the heirs-at-law of the deceased if it avers their names to be unknown.28 § 7448. Examples of Pleadings Wanting in Particularity.—Courts have found the following averments of negligence wanting in particularity of statement:-An allegation in an action against a telegraph company for neglect in delivering a message that an incompetent agent had charge of the office, where there was no averment that he was careless in the performance of the act which formed the subject matter of the action;29 an averment in an action for wrongful death that the defendant wrongfully and negligently killed the deceased, which did not state the facts claimed to constitute such negligence;30 an allegation that the injury complained of occurred "wholly because of the gross carelessness and negligence of said defendant, its agents and servants," which did not state which of its agents was chargeable with negligence and what act or omission of such agents constituted the negligence;31 an allegation in an action for injuries sustained in falling through an unguarded opening in a floor that the plaintiff was injured while passing through the room in question to perform an act in the line of his duty, but which did not al lege that it was necessary for him to pass through this particular room or facts from which such necessity could be inferred;32 an allegation of simple negligence in a complaint against a railroad company for running over plaintiff at its station, which did not state whether plaintiff was a passenger, employé, or a mere trespasser,33 an allegation that the defendants conducted themselves so carelessly, 27 Commonwealth v. Coburn, 132 Shamblin, 101 Tenn. 263; s. c. 47 Mass. 555, 562. Cent. L. J. 449; 47 S. W. Rep. 496. 31 Atchison &c. R. Co. v. O'Neill, 49 Kan. 367; s. c. 30 Pac. Rep. 470. 32 Rafferty v. Toledo Traction Co., 10 Ohio C. D. 347; s. c. 19 Ohio C. C. 288. 33 Ensley R. Co. v. Chewning, 93 Ala. 24; s. c. 9 South. Rep. 458. negligently, and unskillfully in the operation of their business as a railroad company, as to inflict upon the plaintiff severe bodily injuries by reason whereof he afterwards died, but which did not state where the deceased was or how he was injured;34 a general allegation in an action by a laundress that underclothing sent to her to wash was impregnated with a contagious and loathsome disease, but which did not state its name or character, where it did not appear that there would be any difficulty in stating this fact;35 an allegation in an action by an employé injured in an elevator, grounded on the omission of prescribed rules for its management, which failed to state what relation the defendant bore to the elevator.36 § 7449. Examples of Pleadings Not Open to this Objection.-A complaint alleging that defendant had assistants engaged in the practice of dentistry under him, and that one of such assistants, whose name is not given, extracted plaintiff's tooth so negligently as to inflict serious injury, was held not demurrable for failure to give the exact day or the name of the assistant by whom the plaintiff was injured.37 A complaint in an action for negligence in failing properly to support the roof of a building, whereby the plaintiff was injured, was held sufficiently specific as showing the defective condition which alleged that the defendant did not provide proper support for and brace the roof of the building so as to resist a weight placed thereon.38 So, it has been held that a declaration in an action against a gas company for personal injuries occasioned an employé by an explosion of a tank due to a defect therein need not allege in what the defect consisted.39 And so, an allegation that a railroad company negligently and carelessly permitted a heavy iron pin to be placed and remain on the tender of its engine so that it was thrown off against plaintiff by the speed of the train, was held not open to the objection that it did not set forth the specific acts of negligence.40 87450. Matters Necessarily Inferred.-Where facts follow by a necessary inference the allegations of the pleading, the court will consider them sufficiently pleaded, and admit evidence tending to establish them. An excellent illustration is found in a Wisconsin 34 Baltimore &c. R. Co. v. Whittington, 30 Gratt. (Va.) 805. Hattermann v. Siemann, 1 App. Div. (N. Y.) 486; s. c. 37 N. Y. Supp. 405; 72 N. Y. St. Rep. 469. Troth v. Norcross, 111 Mo. 630; s. c. 20 S. W. Rep. 297. 37 Wilkins v. Ferrell, 10 Tex. Civ. App. 231; s. c. 30 S. W. Rep. 450. as Dehority v. Whitcomb, 13 Ind. App. 558; s. c. 41 N. E. Rep. 1059. 39 Cox v. Providence Gas Co., 17 R. I. 199; s. c. 21 Atl. Rep. 344. 40 Cleveland &c. R. Co. v. Berry, 152 Ind. 607; s. c. 53 N. E. Rep. 415. case, in which an averment that a hatchway had existed in a sidewalk for the space of three years, during all of which time the owner had been accustomed to open it "frequently, by throwing the door over flat on the sidewalk, leaving an open space of several feet unplanked, unguarded, and unprotected in any manner," was held a sufficient allegation that the city had notice of such insufficiency in the sidewalk.41 $7451. Alternative Averments.-The rule requiring certainty of averment is violated where the complaint sets up alternative charges of negligence on the part of the defendant, rendering it impossible to determine upon which of the averments the pleader intends to rely for the maintenance of his action.42 A petition in an action against two railroad companies for injury to stock in shipment, alleging that the loss and damage occurred by negligence of one or the other or both of such companies, and that as to which plaintiff was unable to say, but that one of the alternatives is true, was held not authorized by a code provision allowing a party to allege alternatively the existence of one or another "fact" if he states that one of them is true and that he does not know which is true, as the provision contemplates that the allegations must refer to definite parties. In another case where the complaint in an action against a carrier for injuries to live stock charged alternatively that it was either the duty of defendant, the initial carrier, to transport the stock to destination on its own lines, or to deliver the stock at some unidentified point to a connecting carrier having a direct route from the junction point to destination, and that the loss resulted from defendant's failure to perform the carriage itself, or from its failure to forward the consignment by a connecting carrier having a direct route, it was held such alternative averments did not constitute a statement of either cause of action, and the complaint was demurrable. But a complaint for injuries sustained by a railway employé by the alleged conjoined negligence of the yard-master or foreman in placing a car in dangerously close proximity to an adjacent track and of the engineer in running the train has been held not open to the objection that it charges the injury either to the engineer's negligence or to the negli 41 Barstow v. Berlin, 34 Wis. 357. See also, Serrot v. Omaha, 1 Dill. (U. S.) 313. 42 Stephen Plead. (Heard's ed.) 387. See also, Kalen v. Terre Haute &c. R. Co., 18 Ind. App. 202; s. c. 47 N. E. Rep. 694; Huntersville v. Ewing, 116 Ala. 576; s. c. 22 South. 43 Kentucky Code Prac., § 113, subd. 4; Brown v. Illinois &c. R. Co., 100 Ky. 525; s. c. 18 Ky. L. Rep. 974; 38 S. W. Rep. 862. "Louisville &c. R. Co. v. Duncan, 137 Ala. 446; s. c. 34 South. Rep. 988. 46 45 gence of the yard-master, but was construed to charge combined negligence on the part of these persons in running the train and so placing the cars. In another case a declaration stating that the deceased was struck "at, or near, or upon a crossing," was upheld against a contention that it violated the rule against pleading in the alternative. In yet another case, a count in an action for personal injuries by collision of railway trains, alleging that persons in charge of the train on defendant's road were guilty of negligence in failing, after discovering plaintiff's peril, to give the usual and proper signals, which would have enabled the train in which plaintiff was riding to avoid the collision, or would have enabled plaintiff to escape from the impending danger, was held not objectionable as alleging alternative acts of negligence.*7 § 7452. Control as between General and Special Allegations of Negligence. The sufficiency of a complaint in an action for personal injuries which undertakes to define the particular negligence which caused the injury must be tested by the special allegation in that respect, although the general allegation of negligence would in the absence of such special allegations be sufficient to make a prima facie case of negligence. 48 In other words, when a general allegation of negligence is followed by an enumeration and averment of specific acts, as, the violation of city ordinances regulating the speed of engines and cars and requiring signals of their approach to crossings,-plaintiff will be confined to the negligence specifically assigned and cannot recover for common-law negligence. Very ob "Kansas City &c. R. Co. v. Burton, 97 Ala. 240; s. c. 12 South. Rep. 88; 53 Am. & Eng. R. Cas. 115. 46 Tyler v. Kelly, 89 Va. 282; s. c. 16 Va. L. J. 480; 15 S. E. Rep. 509. "Highland Ave. &c. R. Co. v. Swope, 115 Ala. 287; s. c. 22 South. Rep. 174. "Conrad v. Gray, 109 Ala. 130; s. c. 19 South. Rep. 398; Highland Ave. &c. R. Co. v. South, 112 Ala. 642; s. c. 20 South. Rep. 1003; Wright v. Wilmington &c. R. Co., 2 Marv. (Del.) 141; s. c. 42 Atl. Rep. 420; Clark v. Missouri Pac. R. Co., 48 Kan. 654; s. c. 29 Pac. Rep. 1138; Arcade File Works v. Juteau, 15 Ind. App. 460; s. c. 40 N. E. Rep. 818; 44 N. E. Rep. 326; Ivens v. Cincinnati &c. R. Co., 103 Ind. 27; 8. c. 1 West. Rep. 131; Buffington V. Atlantic &c. R. Co., 64 Mo. 246; McCarty v. Rood Hotel Co., 144 Mo. 397; s. c. 46 S. W. Rep. 172; Wald 49 heir v. Hannibal &c. R. Co., 71 Mo. 514; Coyle v. Third Ave. R. Co., 18 Misc. (N. Y.) 9; s. c. 40 N. Y. Supp. 1131; rev'g s. c. 17 Misc. (N. Y.) 282; 40 N. Y. Supp. 362; Missouri &c. R. Co. v. Vance (Tex. Civ. App.), 41 S. W. Rep. 167 (no off. rep.); Missouri &c. R. Co. v. Hennessey, 75 Tex. 155; s. c. 12 S. W. Rep. 608; 42 Am. & Eng. R. Cas. 225; Houston &c. R. Co. v. Summers (Tex. Civ. App.), 49 S. W. Rep. 1106. Where the petition, in an action against a railroad for injuries sustained at a crossing, alleged negligence only in failing to blow the whistle and ring the bell, as required by statute, there can be no recovery because of the engineer's failure to keep a lookout: San Antonio &c. R. Co. v. Stolleis (Tex. Civ. App.), 49 S. W. Rep. 679. 40 McManamee v. Missouri &c. R. Co., 135 Mo. 440; s. c. 37 S. W. Rep. viously the rule confining the evidence to the particular acts of negligence charged is without application where there are no specific acts of negligence alleged in the petition.50 § 7453. Complaint Good in Part.-A complaint stating a good and complete cause of action as to certain failures of duty on the part of defendant will not be held bad on general demurrer because it attempts, but fails, to state other failures of duty on the part of defendant;51 and for like reasons the fact that evidence having a material bearing upon one or more of the charges of negligence in a complaint for personal injuries also tends to support a charge of negligence not made by the complaint, will not render it improper.52 § 7454. Matters Pertaining Strictly to the Remedy.-If a matter pertains strictly to the remedy, and is a matter of evidence, it is not necessary that it should be pleaded, but it may be shown in evidence merely. Thus, under a statute of Vermont requiring a person who has sustained special damage in consequence of a defective highway to give notice to the defendant of his intention to prosecute, within thirty days after the injury, the court say that such notice "is only a step in the process for enforcing the legal remedy; and though it is required to be taken, and may be required to be proved, it need not be set forth in the declaration. * * There is also a close anal ogy between this case and the decisions that have been made under the Statute of Frauds, and various other statutes which have required some new thing to be done in order to make certain contracts valid in law which before were good, though in parol merely. The Statute of Frauds requires certain classes of contracts to be in writing, and the plaintiff in a suit upon such contract must prove it to be in writing, but the declaration need not aver it to be so. The reason given is, that the statute has not altered the rules of pleading, but only requires that the contract shall be proved in a particular manner, 119; 5 Am. & Eng. R. Cas. (N. S.) 50 Chesapeake &c. R. Co. v. Dixon, 104 Ky. 608; s. c. 47 S. W. Rep. 615; 50 S. W. Rep. 252; Texas &c. R. Co. v. Meeks (Tex. Civ. App.), 74 S. W. Rep. 329. 51 Drefahl v. Connell, 85 Wis. 109; s. c. 55 N. W. Rep. 160. 52 North Chicago &c. R. Co. v. Cotton, 41 Ill. App. 311; s. c. aff'd, 140 Ill. 486; 29 N. E. Rep. 899; Cohen v. Chicago &c. R. Co., 104 Ill. App. 314. |