76

acts set out. The connection between the defective condition of a roadbed and an injury was held sufficiently stated by an allegation that the train, without any fault or negligence on the part of plaintiff, but wholly on account of the insufficient roadbed and track thereon, so carelessly and negligently constructed by the defendant, was thrown from the track of said road, and by reason thereof plaintiff, who was riding thereon, was thrown from the car and injured." Under a code provision requiring pleadings to be liberally construed, a complaint which alleged that by reason of defendant's negligence and plaintiff's injuries, plaintiff suffered shock, and permanent injury; that defendant's negligence consisted in leaving unguarded revolving knives under the table of a planing machine; and that plaintiff, while working at the machine, was injured by his contact with such knives,— has been held sufficient to aver the causal relation between the negligence described and the injury suffered.78

§ 7458. Allegation of Duty.-It will not be sufficient to allege that a duty existed upon the part of the defendant, and that he violated such duty; but the facts must be stated, showing the legal liability. Unless the duty results, in all cases, from the stated facts, the declaration so framed will be bad. The allegation of duty is superfluous where the facts stated show a legal liability, and it is useless where they do not.so Thus, where a declaration stated that the defendant was possessed of a theater, and of a stage therein on which dramatic entertainments were given, and of a dressing-room for chorus-singers, and of a floor underneath the stage, in which floor was a cut or hole, and along which floor the performers at the theater were accustomed to pass from the said dressing-room to the back of the stage; that the plaintiff was hired by the defendant to sing on the stage as a chorus-singer; that it then became the defendant's duty to cause the floor to be so sufficiently lighted and the hole so fenced as

76 Schultz v. Moon, 33 Mo. App. 73; Ward v. Chicago &c. R. Co., 61 329.

"Evansville &c. R. Co. v. Maddux, 134 Ind. 571; s. c. 33 N. E. Rep. 345; 34 N. E. Rep. 511.

TS Shepherd v. Morton-Edgar Lumber Co., 115 Wis. 522; s. c. 92 N. W. Rep. 260.

80 Alabama &c. R. Co. v. Hall, 133 Ala. 362; s. c. 32 South. Rep. 259; Lang v. Brady, 73 Conn. 707; s. c. 49 Atl. Rep. 199; Hichliff v. Rudnick, 70 Ill. App. 148; Jensen v. Wetherell, 79 Ill. App. 33; Northern Milling Co. v. Mackey, 98 Ill. App. 57; Thamm v. Lahey, 59 Ill. App.

Ill. App. 530; West Chicago Street R. Co. v. James, 69 Ill. App. 609; Taylor v. Atlantic Mutual Ins. Co., 2 Bosw. (N. Y.) 106; Buffalo v. Holloway, 7 N. Y. 493; aff'g s. c. 14 Barb. (N. Y.) 101; Clark v. Dyer, 81 Tex. 339; s. c. 16 S. W. Rep. 1061; Kennedy v. Morgan, 57 Vt. 46; Brown v. Mallett, 5 C. B. 599; s. c. 17 L. J. (C. P.) 227; Roberts v. Great Western R. Co., 4 C. B. (N. S.) 506; s. c. 27 L. J. (C. P.) 266; Seymour v. Maddox, 16 Q. B. 326; s. c. 20 L. J. (Q. B.) 327; Rex V. Everett, 8 Barn. & Cress. 114.

to prevent accident to persons passing from the dressing-room to the stage; and that the defendant, well knowing the premises, suffered the floor to be insufficiently lighted, and the hole to be open without any sufficient fence, so that the plaintiff was injured by falling into the hole, it was held that the declaration was bad, on arrest of judgment, because the facts stated did not raise the duty a breach of which was complained of, and that the express allegation of duty would not aid.81 Where the complaint states a good and complete cause of action as to certain failures of duty on the part of the defendant, it will not be held bad on demurrer because it attempts, but fails, to state other failures of duty on the part of defendant.":

82

§ 7459. Separate "Counts."-Concerning the propriety of repeating the statement of the same cause of action, in different form, in separate "counts," as they are called, of the petition, in pleading under the code, there is a considerable conflict of authority. The statutes all require that the facts be stated without "unnecessary repetition,” and it is in construing this provision that the difficulty arises.84 It is not proposed to enter here upon the merits of this discussion, for which the reader is referred to the authority cited. In Indiana, in an action against a railroad company to recover the value of stock killed by a train, the complaint contained two "counts," one of which described the stock as "common stock," and the other as "stock of the full blood." This difference was held sufficiently material to sustain and render proper separate counts.85 Under a statute permitting different causes of action to be united in one petition, but requiring them to be separately stated, a complaint in an action against a railroad company for killing stock was held bad which united in one count a failure to fence, a failure to give statutory signals, and common-law negligence in operating the train, and the court required the plaintiff to elect on which cause of action he would proceed. If one of the "counts" is bad, it may be demurred to, or stricken out on motion. But, as only one statement of the cause of action is requisite to sustain the proceeding, it is error to sustain a demurrer to the complaint if it contains one good "count."

9987

86

85 Toledo &c. R. Co. v. Daniels, 21 Ind. 256.

86 Harris v. Wabash R. Co., 51 Mo. App. 125. See also, Matz v. Chicago &c. R. Co., 88 Fed. Rep. 770.

ST Wright V. Indianapolis &c. R. Co., 18 Ind. 168; Jeffersonville &c. R. Co. v. Vancant, 40 Ind. 233.

90

§ 7460. Demurrer.-The most usual way to take advantage of a defective plea is by way of demurrer, the effect of which is to admit the facts as stated, and to raise an issue of law as to the plaintiff's right to recover upon them.88 It follows that a defect, to render an allegation demurrable, must be apparent upon its face. A defense arising from extraneous facts must be stated by way of answer or replication, and affords no ground of demurrer. Thus, a complaint, against a railroad company, in an action for the death of an employé, which charges that the company itself, by its negligence and unskillfulness in the management, etc., of its engines and cars, caused the death of the deceased, does not raise a question of the liability of the company for an injury to a servant by the negligence of a co-servant, and is not demurrable. If, on the contrary, the complaint shows that the plaintiff, a brakeman, was injured by the negligence of the conductor on the same train, it is demurrable, in jurisdictions where such employés are deemed fellow servants, unless it also shows that the company was negligent in the employment of an unskillful and incompetent conductor. The reason for the difference is plain. In the first instance, the accident may have proceeded from some other cause than the negligence of a co-servant. In the other, the complaint shows that the injury resulted from the negligence of a coemployé, and the complainant can only recover by showing that the defendant was at fault in employing an incompetent servant. So, the failure of a complaint by a mother to allege the death, desertion or imprisonment of the father, necessary under the Indiana statute to give her a right of action for the death of her child, may be raised by demurrer for want of sufficient facts to constitute a cause of action.91 For like reasons it has been held that a general demurrer for insufficiency of facts is the proper method of raising the objection to a complaint, in an action against a city for damages for a highway injury, that fails to allege presentation of the claim to the city clerk and an appeal from the decision of the council, as provided by statute.92 § 7461. Motion to Make More Specific.-The remedy for a failure to state the specific acts or omissions which constitute the negligence relied upon is by motion to make the complaint or declaration more

89 In Indiana, an objection to a declaration that it does not state the cause of action with fulness, clearness, and explicitness cannot be taken by demurrer, but must be made by a motion to make it more specific: Brookville &c. Turnpike Co. v. Pumphrey, 59 Ind. 78.

80 Hildebrand v. Toledo &c. R. Co.,

47 Ind. 399. See also, Kittredge v. Milwaukee, 26 Wis. 46.

90 Dow v. Kansas &c. R. Co., 8 Kan, 642.

91 Louisville &c. R. Co. v. Lohges, 6 Ind. App. 288; s. c. 33 N. E. Rep. 449.

92 Koch v. Ashland, 83 Wis. 361; s. c. 53 N. W. Rep. 674.

specific, and not by a demurrer, if there is a general allegation of negligence.93

§ 7462. Bill of Particulars.-Under the New York practice a bill of particulars will not be ordered where there is no suggestion in the motion therefor that the defendant has not been able to ascertain all the facts connected with the transaction.94 Nor will the bill be ordered where the injured person is dead and the plaintiff is suing as his representative, and it is apparent that the defendant has had better means of knowledge than the plaintiff in respect to the particulars of the negligent act.95 A bill will be granted, however, where the plaintiff, an employé, avers generally that the injuries were caused by a failure to provide improved appliances and attachments in general use, and he will be required to set out the character of such appliances and attachments the use of which would have prevented the happening of the accident.96 Likewise plaintiff, in an action for personal injuries, whose complaint merely alleges that the explosion of a fly-wheel by which the injury was occasioned was due to carelessness and negligence on the part of the defendant or its employés, without specifying in what such carelessness or negligence consisted,

Cunningham v. Los Angeles R. Co., 115 Cal. 561; s. c. 47 Pac. Rep. 452; 1 Am. Neg. Rep. 8; Cincinnati &c. R. Co. v. Gaines, 104 Ind. 536; s. c. 2 West. Rep. 262; Evansville &c. R. Co. v. Maddux, 134 Ind. 571; s. c. 34 N. E. Rep. 511; 33 N. E. Rep. 345; Louisville &c. R. Co. v. Bates, 146 Ind. 564; s. c. 45 N. E. Rep. 108; Ohio &c. R. Co. v. Hecht, 115 Ind. 443; s. c. 17 N. E. Rep. 297; 15 West. Rep. 122; Rogers v. Baltimore &c. R. Co., 150 Ind. 397; s. c. 49 N. E. Rep. 453; 9 Am. & Eng. R. Cas. (N. S.) 726; Price v. Atchison Water Co., 58 Kan. 551; s. c. 50 Pac. Rep. 450; Omaha &c. R. Co. v. Wright, 49 Neb. 456; s. c. 68 N. W. Rep. 618; 5 Am. & Eng. R. Cas. (N. S.) 419; rev'g s. c. 47 Neb. 886; 66 N. W. Rep. 842; 4 Am. & Eng. R. Cas. (N. S.) 9; Young v. Lynch, 66 Wis. 514. A general allegation of negligence, while good against a general demurrer, is not good against a demurrer on the ground of uncertainty, under Idaho Rev. St., § 4168, subd. 2, requiring the complaint to contain a statement of the cause of action, in ordinary and concise language: King v. Oregon

Short-Line R. Co., 6 Idaho 306; s. c. 55 Pac. Rep. 665.

4 Phalen v. Roberts, 21 App. Div. (N. Y.) 603; s. c. 47 N. Y. Supp. 780; Richmond v. Second Ave. R. Co., 47 N. Y. St. Rep. 306; s. c. 19 N. Y. Supp. 597; Stillman v. Brush Electric Light Co., 92 Hun (N. Y.) 504; s. c. 37 N. Y. Supp. 49; 72 N. Y. St. Rep. 201.

95 Donohue v. Meares, 19 N. Y. Supp. 585; s. c. 47 N. Y. St. Rep. 188; Lusbie v. Meares, 47 N. Y. St. Rep. 249; s. c. 19 N. Y. Supp. 586.

96 Stillman v. Brush Electric Light Co., 92 Hun (N. Y.) 504; s. c. 37 N. Y. Supp. 49; 72 N. Y. St. Rep. 201. Where plaintiff, in an action for personal injuries, alleges generally that by reason of defendant's employment of unskilled, inexperienced engineers and workmen, and the use and operation of insufficient and dangerous machinery without necessary safeguards, and failure to provide sufficient light at night, he lost his arm by being caught in such machinery, and was otherwise injured, he will be required to furnish a more particular statement: Niden v. Wolfender, 12 Pa. Co. Ct. 398.

has been required to furnish a bill of particulars stating what facts, if any, besides the explosion, he relied on to establish negligence.97

§ 7463. Whether Contributory Negligence should be Negatived. -The subject of pleading in its relation to contributory negligence was presented in an earlier Title, and the irreconcilable conflict in the courts on the question of the necessity of plaintiff averring his own freedom from fault in his complaint duly noted. The view there expressed that the plaintiff ought not to be required to disprove affirmatively his own negligence in the first instance remains unchanged.9s In States where plaintiff carries this burden it is not necessary, in order to negative contributory negligence, to set out in the complaint the specific steps taken by the injured party to avoid the injury:99 a general averment of injury inflicted without any fault on the part of plaintiff is generally sufficient.100 In Illinois, however, it has been held that an allegation that plaintiff was exercising due care and caution was not sufficient to show that plaintiff was exercising due care for his own safety." But even there a declaration is not regarded as materially defective because it omits to aver that plaintiff was exercising ordinary care at the exact instant of receiving the injuries complained of.102 The recent Indiana statute making contributory negligence a matter of defense to be pleaded and proved by defendant has been construed by the Supreme Court of that State not to extend to injuries to property; and where that species of negligence is involved, it is still necessary for the plaintiff to aver his freedom from contributory negligence.103

101

§ 7464. Where Contributory Negligence is Apparent on the Face of the Complaint.-An averment that plaintiff was free from con

07 Myers v. Albany R., 5 App. Div. (N. Y.) 596; s. c. 39 N. Y. Supp. 446. 98 See Vol. I, § 364, et seq. Smoot v. Wetumpka, 24 Ala. 112; Southern R. Co. v. Crenshaw, 136 Ala. 573; s. c. 34 South. Rep. 913; White v. Trinidad, 10 Colo. App. 327; s. c. 52 Pac. Rep. 214; Cummings v. Helena &c. Smelting &c. Co., 26 Mont. 434; s. c. 68 Pac. Rep. 852; Warshawsky Raritan Traction Co., 68 N. J. L. 241; s. c. 52 Atl. Rep. 296; Purcell v. Bennett, 68 N. J. L. 519; s. c. 53 Atl. Rep. 285; Hackford v. New York &c. R. Co., 43 How. Pr. (N. Y.) 222; Haskell v. Pen Yan, 5 Lans. (N. Y.) 48; Hackford v. New York &c. R. Co., 6 Lans. (N. Y.) 386; s. c. 43 How.

མ.

Pr. (N. Y.) 247; Martin v. Southern R. Co., 51 S. C. 150; s. c. 28 S. E. Rep. 303.

99 Chicago &c. R. Co. v. Lagerkrans, 65 Neb. 566; s. c. 91 N. W. Rep. 358.

100 Ivens v. Cincinnati &c. R. Co., 103 Ind. 27; s. c. 1 West. Rep. 132; Fort Wayne v. Coombs, 107 Ind. 75; s. c. 5 West. Rep. 229.

101 Peoria v. Adams, 72 Ill. App. 662. See also, Calumet Iron &c. Co. v. Martin, 115 Ill. 358; s. c. 2 West. Rep. 53.

102 Franklin Printing &c. Co. v. Behrens, 80 Ill. App. 313.

103 Cleveland &c. R. Co. v. Wisehart, 161 Ind. 208; s. c. 67 N. E. Rep. 993.