CHAPTER CC. PLEADINGS IN PARTICULAR CLASSES OF NEGLIGENCE. ART. I. ART. II. ART. III. Pleadings in Actions against Railroad Companies, Pleadings in Actions against Carriers, §§ 7509-7519. Pleadings in Actions between Master and Servant, ART. IV. Pleadings in Actions against Municipal Corporations, $$ 7551-7572. ART. V. Pleadings in Cases of Injuries from Dangerous Premises, ART. VI. Pleadings in Miscellaneous Cases of Negligence, §§ 7587 § 7491. Injuries to Persons on Railroad Track or Premises Not at Crossings. The complaint, in an action for injuries received on a railroad track, should show whether the injured person was a licensee or a trespasser at the time of receiving the injury, since the law imposes a different measure of duty on the railroad company towards persons on its track, dependent on whether they are there by permission or otherwise.1 In the absence of an allegation showing the 'Gadsden &c. R. Co. v. Julian, 133 Reardon v. Missouri &c. R. Co., 114 Ala. 371; s. c. 32 South. Rep. 135 Mo. 384; s. c. 21 S. W. Rep. 731. There is a fatal variance between (applied in case of an infant); 4 status of the injured person, he will be presumed to have been a trespasser to whom defendant owes only the duty not to injure him wantonly after becoming aware of his danger.2 In the case of a trespasser it has been held that a complaint charged simple negligence only under this rule, which alleged that the servants of defendant were so situated that the perilous position of the deceased was apparent to them and they ought to have discovered it by ordinary care and have stopped the locomotive, and that they negligently, carelessly, and recklessly failed to stop the locomotive. An averment that large numbers of persons were in the habit of walking along the track to their work, and that this fact was well known to the servants and agents of the railroad company, is proper on the question of wantonness. The allegation of knowledge of the perilous position of the injured person must be clearly set out in a complaint. A mere allegation that a brakeman saw the person on the track in a perilous position and signalled to the engineer to stop the train, and took off his hat and swung it and hallooed at him, was held insufficient to show that the engineer knew that any one was in danger.3 Wantonness and willfulness are well averred by an allegation that the engine was pushed forward or backed down on the injured person without giving any warning of its approach, and that defendant knew the dangerous position of the person on the track, and that the act was willful and wanton and with knowledge of the dangerous position of such person. In the case of a licensee the rule of pleading as to particularity is not different from that in other cases of negli-. gence. Thus, a general averment that the injured person was on the track by the company's invitation, and that the company negligently a complaint averring that the plaintiff was lawfully on a railroad track when he was injured, without stating that he was in the employment of the company, and evidence that he was the company's employé and was injured by the negligence of an engineer, a fellow servant: Mobile &c. R. Co. v. George, 94 Ala. 199; s. c. 11 Rail. & Corp. L. J. 26; 10 South. Rep. 145. 2 White v. Nashville &c. R. Co., 108 Tenn. 739; s. c. 70 S. W. Rep. 1030. 3 Southern R. Co. v. Bush, 122 Ala. 470; s. c. 26 South. Rep. 168. A complaint for the death of a child, alleging that defendant's engineer could have seen the child on the track if he had looked, but that he negligently failed to see her; that he was carelessly and reckless ly running the engine at an unlawful rate of speed, and by reason thereof was unable to control the train, and stop it, on seeing the child; and that she was willfully, recklessly, and negligently killed,is based on the theory of negligence, and not of willfulness: Dull v. Cleveland &c. R. Co., 22 Ind. App. 571; s. c. 52 N. E. Rep. 1013. Alabama Great Southern R. Co. v. Guest, 136 Ala. 348; s. c. 34 South. Rep. 968. Underwood v. Western &c. R. Co., 105 Ga. 48; s. c. 31 S. E. Rep. 123; Evans v. Pittsburg &c. R. Co., 142 Ind. 264; s. c. 41 N. E. Rep. 537. • Pittsburgh &c. R. Co. v. Kinnare, 203 Ill. 388; s. c. 67 N. E. Rep. 826. See also, Bias v. Chesapeake &c. R. Co., 46 W. Va. 349; s. c. 33 S. E. Rep. 240. ran over and injured him with one of its engines, has been held sufficient without averring any particular acts or omissions constituting the negligence complained of." §7492. Places Attractive to Children.-In a case where a child was injured while playing on a railroad turn-table, a complaint alleging that the child was induced by other small children, with the knowledge and consent of defendant, its agents and servants, and by the invitation of the defendant, to come to and about the turn-table, was held sufficiently to allege an invitation to come upon the dangerous premises, although the facts constituting the invitation were not set forth. In another case of injury to a child, an allegation that the railroad company kept a long train of cars standing on its track on the street for the purpose of loading and unloading ice, pieces of which fell under and around the cars, attracting children, and that while the deceased, a child eight years old, was engaged about and under the cars in gathering ice, the defendant negligently bumped a train against the cars standing on the track, causing the injury, was held defective as not showing that defendant was responsible for the manner of loading and unloading, that it was done in a negligent manner, or how long, if at all, the child had been under the car before it began to move." § 7493. Injuries at Highway Crossings.-Negligence causing an injury at a crossing must be distinctly charged,10 though all the particulars of the negligent act are not set forth in detail.11 Where neg 'Mobile &c. R. Co. v. George, 94 Ala. 199; s. c. 11 Rail. & Corp. L. J. 26; 10 South. Rep. 145. See also, Sullivan v. Missouri &c. R. Co., 97 Mo. 113; s. c. 10 S. W. Rep. 852. A complaint which alleges that defendant railroad company, by its agents, servants and employés, did so carelessly, negligently, recklessly, heedlessly and unskillfully run, manage and conduct a locomotive and train of cars which it was operating on its road that said locomotive and train ran against, struck, and fatally injured and wounded a person named, of which injury and wounding such person died, at a specified time and place, -states a cause of action: Shaw v. Missouri Pac. R. Co., 104 Mo. 648; s. c. 16 S. W. Rep. 832. 8 Chicago &c. R. Co. v. Krayenbuhl, 65 Neb. 889; s. c. 91 N. W. Rep. 880; 59 L. R. A. 920. 'Rushenberg v. St. Louis &c. R. Co., 109 Mo. 112; s. c. 19 S. W. Rep. 216. 10 Matz v. Chicago &c. R. Co., 88 Fed. Rep. 770. 11 East Line &c. R. Co. v. Brinker, 68 Tex. 500; s. c. 3 S. W. Rep. 99. A count averring that defendant then and there by its servants so carelessly and improperly drove and managed a locomotive and engine and train of cars that by and through the negligence and improper conduct of the defendant, by its servants in that behalf, the locomotive engine and train of cars then and there ran and struck with great force and violence upon and against the horses, wagon, and the decedent, and thereby decedent was then and there thrown to and upon the ground and killed, is not objectionable on the ground that the allegation of negligence is too gen ligence is so charged, the plaintiff may prove any fact or circumstance which tends to show that the defendant was negligent as to travellers in the running of the locomotive at the particular time and the place.12 Thus, a general averment in a complaint setting out that defendant, by its agent, carelessly and negligently ran its locomotive, engine, and train of cars attached thereto, upon the team of horses and wagon which plaintiff and her husband were driving across the track, demolishing the wagon and injuring the plaintiff, was held sufficient to withstand a demurrer without stating the particular acts of negligence involved. 13 So, a complaint alleging that the train approached the crossing where plaintiff was injured without care and without exercising any diligence whatever, was held broad enough to allow a recovery for any negligence shown in running the train as it approached the crossing, notwithstanding it was also alleged that the whistle was not blown nor the bell rung.1 So, a complaint for the demolition of a threshing machine at a crossing which charged that the collision was caused by the negligence of the engineer and other employés, was upheld as sufficient without an allegation that the engineer was warned in sufficient time to stop the train and avoid the injury or by the exercise of reasonable care could have seen the machine in time to have stopped the train.15 In all cases the fact that the injuries were the proximate result of the negligent act of defendant should be clearly averred.16 Since the rules prescribing the care to be exercised toward persons injured on railroad tracks depend eral: Boyd v. Chicago &c. R. Co., wagon, while lawfully travelling along the public highway, has been held not bad for failing to allege the physical facts constituting the negligence: Clark v. Chicago &c. R. Co., 28 Minn. 69. 12 Atlantic &c. R. Co. v. Reiger, 95 Va. 418; s. c. 20 S. E. Rep. 590. 15 Chicago &c. R. Co. v. Spilker, 134 Ind. 380; s. c. 33 N. E. Rep. 280; 32 Am. L. Reg. 763; 34 N. E. Rep. 218. To a similar effect, see Central of Georgia R. Co. v. Edmondson, 135 Ala. 336; s. c. 33 South. Rep. 480. 14 Missouri &c. R. Co. v. Settle, 19 Tex. Civ. App. 357; s. c. 47 S. W. Rep. 825. 15 Davidson v. Chicago &c. R. Co., 98 Mo. App. 142; s. c. 71 S. W. Rep. 1069. 16 Baltimore &c. R. Co. v. Young, 146 Ind. 374; s. c. 45 N. E. Rep. 479; 6 Am. & Eng. R. Cas. (N. S.) 349; Ohio &c. R. Co. v. Engrer, 4 Ind. App. 261; s. c. 30 N. E. Rep. 924. upon the right of the person to be on such track,17 and a lesser degree of care is imposed where such person is a trespasser, the plaintiff in an action for injuries received at a railroad crossing should clearly aver his right to be on the track. An allegation that the injury was received "at or near" a private crossing has been construed to mean that he was injured at a place on the track other than a public crossing.18 The averment that the crossing was a travelled road is sufficient where it alleges that the road had been used for a long time and the use had been acquiesced in by defendant without definitely stating the length of time such use had been acquiesced in.19 So evidence that a footway across a railway track had been used for a considerable time has been held admissible under an allegation that it was used as a public crossing or foot-way for foot-men.20 Under a Massachusetts statute the declaration in an action for injuries received at a railroad crossing must allege that the accident occurred upon the crossing of a highway at grade, that the signals required by statute were neglected and that the neglect contributed to the injury.21 Failure in the statutory duty to sound the whistle or bell when approaching a public crossing is sufficiently covered by an allegation that the train was running at a high rate of speed without complying with the statute as to signals at crossings and that by reason of this negligence, the injuries complained of were caused.22 The complaint must show that the injury was due to the omission to give the signals.23 Under a statute requiring the sounding of either bell or whistle, a complaint was held insufficient which alleged in one count an omission to ring the bell, and in another count an omission to sound the whistle, but in neither count alleging the omission of both. Formerly in In 17 Illinois Cent. R. Co. v. Chicago &c. Co., 79 Ill. App. 623. 18 Davis v. Chesapeake &c. R. Co., 25 Ky. L. Rep. 342; s. c. 75 S. W. Rep. 275; withdrawing opinion in 24 Ky. L. Rep. 1125; 70 S. W. Rep. 857. 19 Armstrong v. New York &c. R. Co., 20 R. I. 791; s. c. 29 Atl. Rep. 448. Evidence that a highway was not legally laid out over a railroad company's right of way where a traveller was struck by a passing train, but that the company, by its acts and its acquiescence in the public use of the crossing, recognized it as a public crossing, is not a fatal variance from the allegation of the complaint in an action for personal injuries based on the neglect of the common-law duty of the company alleging that plaintiff was injured at a crossing of the public highway 24 22 Southern R. Co. v. Posey, 124 Ala. 486; s. c. 26 South. Rep. 914. Evidence that neither the engine whistle nor bell was sounded is admissible under a general allegation that the engineer carelessly and negligently ran the engine: Winter v. Central Iowa R. Co., 80 Iowa. 443; c. c. 45 N. W. Rep. 737. 23 Baltimore &c. R. Co. v. Young 146 Ind. 374; s. c. 45 N. E. Rep. 499; 6 Am. R. Cas. (N. S.) 349. 24 Highland Ave. &c. R. Co. v. |