tributory negligence will be of no avail to him if it appears from the statement of facts in the complaint that the injury resulted from his own negligence; in such case he should be nonsuited notwithstanding the averment that he was without fault.104 This defect may be reached by a demurrer, but before a demurrer can be sustained on this ground, the facts stated must raise such a presumption of negligence that the court will be bound, as a matter of law, to declare that no recovery can be had.105 There was a case for the application of this rule where the complaint alleged that defendant negligently permitted its train to obstruct a street over which plaintiff desired to pass to reach a point where pressing business demanded his attention, and that the obstruction was of such an extent that he could not pass it without great inconvenience, and in order to pass over the tracks, he got upon a flat-car and in the darkness of the night leaped to the ground and was injured.106 It was held that contributory negligence appeared on the face of the complaint of a motorman injured in a collision with a railroad train wherein he alleged that he was assured by his employers that the railway track was seldom used and was accordingly ordered to run across without stopping his car and without opportunity for looking for trains, and that relying on these representations he did as directed and received the injury.107 In another case plaintiff alleged that the foreman in defendant's brewery directed him to clean out certain vats, around which he had never worked, without giving him warning of any danger; that he was very heavy, so that, when he crawled under a vat with a hose to clean the place, his clothing became saturated with water, and he stuck between the vat and the floor, and extricated himself, after calling vainly for help, only with great difficulty and after sustaining injuries. It was held. that a specific allegation in the declaration that plaintiff was in the exercise of due care did not save the pleading, as want of care was

104 Ivens v. Cincinnati &c. R. Co., 108 Ind. 27; s. c. 1 West. Rep. 132. A petition in an action to recover for the death of plaintiff's decedent by being struck by a train on defendant's railroad at a crossing, which alleges that the decedent, while approaching the crossing, in a covered buggy, and when one hundred and thirty-five feet distant therefrom, saw the approaching train, and drove upon the crossing, without again looking in that direction, discloses such contributory negligence on his part as to preclude any recovery, although it alleges negligence on the part of de

fendant's servants in running the train at an unusual rate of speed, and in failing to give the proper signals: Gilbert v. Erie R. Co., 97 Fed. Rep. 747.

105 Union Twp. v. Hester, 8 Kan. App. 725; s. c. 54 Pac. Rep. 923.

106 McCullum v. Cleveland &c. R. Co., 154 Ind. 97; s. c. 55 N. E. Rep. 1024 (and this was the view of the court though the railroad company violated a State law against obstructing highway crossings beyond a certain limit).

107 Goodrich v. Chippewa Val. Electric R. Co., 108 Wis. 329; s. c. 84 N. W. Rep. 419.

apparent from such facts.108 Of course the principle just stated as to contributory negligence apparent on the face of the complaint is to be understood with the qualification that the pleader does not go further and show a right to recover notwithstanding his own fault; as, for example, by an allegation that the injury was willfully inflicted;109 or, in case of an employé injured by machinery known to him to be defective, by an allegation that he continued to work with the machine under a promise of the master to make repairs, though the accident occurred before a reasonable time to effect the repairs had elapsed.11

§ 7465. "Willful" and "Gross" Negligence.-The words "gross," wanton," or "criminal" qualifying the word "negligence" in a complaint for personal injuries which does not otherwise support a claim for exemplary damages are regarded as surplusage.111 Generally, a complaint alleging injury by the gross negligence of defendant without alleging that the injury was inflicted willfully, wantonly, or through malice will not suffice to charge willful negligence.112 Willful injury must be averred, and a complaint which charges simple negligence merely will not allow proof of this grade of negligence, the characteristic of which is, that a recovery may be had notwithstanding contributory negligence.113 Some courts refuse a recovery

108 Baumler v. Narragansett Brewing Co., 23 R. I. 430; s. c. 50 Atl. Rep. 841.

100 Indianapolis &c. R. Co. v. Petty, 30 Ind. 261; Lafayette &c. R. Co. v. Adams, 26 Ind. 76; Alabama &c. R. Co. v. Burgess, 114 Ala. 587; s. c. 22 South. Rep. 169.

110 Snowberg V. Nelson - Spencer Paper Co., 43 Minn. 532; s. c. 45 N. W. Rep. 1131.

11 McCord v. High, 24 Iowa 336; Rouse v. Downs, 5 Kan. App. 549; ́s. c. 47 Pac. Rep. 982; Richter v. Harper, 95 Mich. 221; s. c. 54 N. W. Rep. 768; Taylor v. Holman, 45 Mo. 371; Panton v. Holland, 17 Johns. (N. Y.) 92. It is not necessary for a plaintiff suing a railroad company for personal injury to charge gross neglect in order to recover compensatory damages: Ramsey v. Louisville &c. R. Co., 89 Ky. 99; s. c. 20 S. W. Rep. 162; 12 Ky. L. Rep. 559. Where a petition counts on negligence, it does not negative an allegation of negligence by using the word "wanton," as the word "wanton" does not signify "willful," but recklessness or heedless inat

tention to duty: Kelly v. Stewart, 93 Mo. App. 47. The averment in a count in an action for damages for negligently killing a person, that the injury was wantonly inflicted, does not make it sufficient as a count declaring upon the wanton injury, where the facts are set out so that they merely show simple negligence: Memphis &c. R. Co. v. Martin, 117 Ala. 367; s. c. 23 South. Rep. 231.

112 McAdoo v. Richmond &c. R. Co., 105 N. C. 149; s. c. 11 S. E. Rep. 316; 41 Am. & Eng. R. Cas. 524. In pleading, the words "gross negli gence" and "reckless" cannot be substituted for "willfulness," and will not admit evidence of willful conduct: Chicago &c. R. Co. v. Hedges, 105 Ind. 398; s. c. 3 West. Rep. 892.

113 Louisville &c. R. Co. v. Markee, 103 Ala. 160; s. c. 15 South. Rep. 511; Pennsylvania Co. v. Smith, 98 Ind. 42. An allegation that decedent was killed while attempting to cross defendant's tracks at a public crossing within a city, which crossing the public were invited to and

where the declaration charges that the act complained of was wanton and willful and the proof discloses simple negligence.114 An allegation in the complaint that defendant, knowing of plaintiff's peril, recklessly pursued a course of conduct calculated to, and which did, inflict personal injuries upon him, will be regarded as a sufficient averment that defendant was guilty of wantonness and willfulness. 115 But the complaint should aver knowledge on the part of defendant. Thus, a complaint alleging that defendant's engineer wantonly or intentionally caused the death of plaintiff's intestate in that he wantonly or intentionally ran the locomotive through the town rapidly and without warning with knowledge that persons were or would likely be on the tracks, has been held not to charge a wanton or willful injury, as it did not show that the engineer had actual knowledge of deceased's peril.116 So, under a provision in the Constitution of Texas authorizing a recovery of exemplary damages in cases of death caused by gross negligence, a complaint against a corporation alleging gross negligence in its employés and that the train was an extra one, having officers of the defendant on board, was held insufficient for failure to allege facts showing a willful act, omission, or gross negligence by some person or persons representing defendant in its corporate capacity as a corporate officer, and approval or ratification of the negli

did cross continuously, through defendant running a train over the crossing at a high rate of speed without signals, and that the death of plaintiff's intestate was the result of the carelessness, negligence, and recklessness of the railroad company's servants in operating the train, was held not to charge the death of plaintiff's intestate to have been caused by the wantonness or willfulness of the railroad company or its servants, so as to bar a plea of contributory negligence: Louisville &c. R. Co. v. Orr, 121 Ala. 489; s. c. 26 South. Rep. 35. Where the specific statements of facts show a case of negligence, epithets thrown into the complaint cannot change the action into one of willful tort; and, under the law of Indiana as it was administered before the passage of a statute changing the rule (see Vol. I, §§ 365, 366), the failure to aver that the plaintiff was free from contributory fault, or to state facts showing that his own negligence did not proximately contribute to his injury, would render the complaint insufficient: R. Co. v. Schmidt, 106 Ind. 73; s. c. Louisville &c.

formerly allowed in Alabama: Lou3 West. Rep. 648. Such proof was 34; s. c. 13 South. Rep. 130; Richisville &c. R. Co. v. Hurt, 101 Ala. 141; s. c. 12 South. Rep. 86; Savanmond &c. R. Co. v. Farmer, 97 Ala. 137; s. c. 10 South. Rep. 141; Louisnah &c. R. Co. v. Meadors, 95 Ala. ville &c. R. Co. v. Webb, 97 Ala. 308; s. c. 12 South. Rep. 374.

114 Wabash R. Co. v. Kingsley, 177 Ill. 558; s. c. 52 N. E. Rep. 931; 5 Am. Neg. Rep. 554; 13 Am. & Eng. R. Cas. (N. S.) 835; rev'g s. c. 78 Ill. App. 236; Highland Ave. &c. R. Co. v. Winne, 93 Ala. 306; s. c. 9 South. Rep. 509. But it has been willful and reckless negligence in held that, where plaintiff alleged live stock being shipped on defendcausing the accident which injured prove gross negligence: Chicago &c. ant's railroad, he had the right to R. Co. v. Calumet Stock Farm, 194 Ill. 9; s. c. 61 N. E. Rep. 1095.

109 Ala. 332; s. c. 19 South. Rep. 115 Levin v. Memphis &c. R. Co.,

395.

116 Louisville &c. R. Co. v. Mitchell, 134 Ala. 261; s. c. 32 South. Rep. 735.

117

gent act by agents of the defendant.1 In a case where it was charged that defendant's train was run over a public crossing in a city at a high and dangerous rate of speed, so as to kill deceased through the negligence, carelessness, and wantonness of the railroad company in operating said train, the court espoused the view that since the operation of the train could not have been negligent and wanton at the same time, it would be held to charge negligence only under the rule that a complaint should be construed against the pleader. 118 The use of the term "recklessly," to describe negligence, adds nothing, as it means no more than a want of care and does not charge gross negligence.119

§ 7466. Averment that Injury could have been Avoided by the Use of Due Care by Defendant after Discovery of Plaintiff's PerilIn jurisdictions where contributory negligence is an affirmative defense to be alleged and proved by defendant, an allegation of this character would be superfluous. In such jurisdictions evidence of the negligence of defendant, after he saw the danger to which a person had negligently exposed himself, is admissible under an allegation that the defendant railway company negligently managed its train in the case of a railway injury.120 In a jurisdiction inclining to the view that plaintiff has the burden of proving his freedom from fault, a complaint alleging that defendant, knowing that it had run its engine against plaintiff while on its track, and was dragging him, negligently failed to stop the engine before plaintiff was injured without his fault, which it could have done, has been held to state a good cause of action, though it did not deny plaintiff's negligence in being on the track, since the plaintiff's negligence was the remote and not the proximate cause of the injury he received.121

§ 7467. Joinder of Causes of Action.-The joinder of different causes of action is a matter governed by the codes of the different States, and but few rules can here be stated with reasonable certainty. Generally, where the causes of action all grow out of and are part of the same injury, they are regarded as really different items of damage rather than as different causes of action. 122 In other words, where

117 Winnt v. International &c. R. Co., 74 Tex. 32; s. c. 11 S. W. Rep. 907.

118 Louisville &c. R. Co. v. Orr, 121 Ala. 489; s. c. 26 South. Rep. 35.

119 Louisville &c. R. Co. v. Barker, 96 Ala. 435; s. c. 11 South. Rep. 453; Highland Ave. &c. R. Co. v. Sampson, 112 Ala. 425; s. c. 20 South.

Rep. 566; Southern R. Co. v. Bush, 122 Ala. 470; s. c. 26 South. Rep. 168.

120 Hanlon v. Missouri &c. R. Co., 104 Mo. 381; s. c. 16 S. W. Rep. 233.

121 Cleveland &c. R. Co. v. Klee, 154 Ind. 430; s. c. 56 N. E. Rep. 234.

122 See generally, Woodward Iron Co. v. Herndon, 114 Ala. 191; s. c.

plaintiff predicates the actionable negligence on a course of conduct in the progress of which are several acts, all closely connected, and leading up to and culminating in the accident, the allegation as to each act, that it was improperly and negligently done, does not make each act a separate cause of action, which must be sufficient in itself. 123 Under this rule the plaintiff, in an action for damages consequent upon a defect in a highway, may unite in one count an averment of injury to his person with an averment of injury to his property.124 Similarly a declaration alleged that, because of a defect in the highway, an axle was broken and plaintiff thrown from the carriage, and the horse, having thereby become startled, ran along the insufficient road for some twenty rods, plunged into the ditch, and was killed. This was held to state but one cause of action.125 Allegations of negligence of a railroad company in unlawfully stopping a freight train more than five minutes across a public highway and wrongfully and negligently backing it after such time while a person was attempting to cross between the cars, were held not separable in the sense that only one would be the proximate cause of the injury, but together they constituted a sufficient allegation of negligence as against a general demurrer.126 A South Carolina code provision that a party shall not be required to state several acts of negligence separately has been construed to allow plaintiff to allege without separate statement the proof of acts of negligence and of willful conduct and recover on both.127 Under the practice in Missouri, the pleader in an action by a widow for the negligent killing of her husband in a mine may set out in different counts, a cause of action under the provision of the mining act making the mine owner liable for failure to furnish props, and one under the general damage act, and the plaintiff will not be compelled to elect between them before the trial but may reserve her election until the close of the testimony.128 Under the Alabama code a personal representative in an action for wrongful death may join causes of action which decedent, had he survived, would have had to declare

21 South. Rep. 430; 7 Am. & Eng. R. Cas. (N. S.) 124; Green v. Eden, 24 Ind. App. 583; s. c. 56 N. E. Rep. 240; Owensboro &c. Co. v. Coons, 20 Ky. L. Rep. 1678; s. c. 49 S. W. Rep. 966 (no off. rep.); Schweinfurth v. Cleveland &c. R. Co., 60 Ohio St. 215; s. c. 54 N. E. Rep. 89.

1 Hill v. Fair Haven &c. R. Co., 75 Conn. 177; s. c. 52 Atl. Rep. 725. 124 Seger V. Barkhamstead, 22 Conn. 290. Negligently driving into a bicycle rider, so as to cause injury

to him and to his bicycle, constitutes but one cause of action: Braithwaite v. Hall, 168 Mass. 38; s. c. 46 N. E. Rep. 398.

125 Hodge v. Bennington, 43 Vt. 450.

126 Lake Erie &c. R. Co. v. Mackey, 53 Ohio St. 370; s. c. 29 L. R. A. 757; 34 Ohio L. J. 259; 41 N. E. Rep. 980. 127 Boggero v. Southern R. Co., 64 S. Car. 104; s. c. 41 S. E. Rep. 819. 129 Boemer v. Central Lead Co., 69 Mo. App. 601.