diana, the view obtained that against one injured at a railroad crossing by coming in collision with a train there arose an inference of negligence on his part that must be rebutted by allegations showing a freedom from fault on the part of the person so injured unless it appeared that the injury was intentionally committed.25 In a case where it was alleged that the view of the track was obstructed, it was held that contributory negligence was sufficiently negatived by an allegation that the plaintiff was himself without fault, that he looked and listened until his team was on the track, and it was impossible to stop it, that he stopped his team just before entering on the track and that he looked and listened from that point but the train was not visible.26 § 7494. Injuries at Street Crossings.-A complaint charging negligence of defendant in approaching a street crossing at a speed prohibited by ordinance should show that this excessive speed was the proximate cause of the injury.27 Generally the allegation as to proximate cause will be regarded as sufficient after verdict if that fact inferentially appears though it is not directly averred.28 Where it is alleged that the injured person drove on the track in response to a signal from an employé that it was safe to proceed, facts should be pleaded showing that the employé was acting within the scope of his duties at the time.29 Where this sufficiently appears, a direct statement that such employé knew that it was dangerous to make the attempt to cross, is not necessary to justify a finding that he knew that South, 112 Ala. 642; s. c. 20 South. 25 Belt &c. Co. v. Mann, 107 Ind. 89; s. c. 5 West. Rep. 314; Louisville &c. R. Co. v. Bryan, 107 Ind. 51; s. c. 5 West. Rep. 260. An allegation, in an action for personal injuries received by being struck by defendant's train at a railroad crossing, that before crossing the track plaintiff stopped his horse and looked and listened, but by reason of defendant's neglect to blow a whistle or ring a bell, he neither heard nor saw the approaching train, is not inconsistent with the general allegation that plaintiff was guilty of no fault or negligence; contributory negligence cannot be predicated thereon: Ohio &c. R. Co. v. McDaneld, 5 Ind. App. 108; s. c. 31 N. E. Rep. 836. and 26 Pierce v. Ray, 24 Ind. App. 302; s. c. 56 N. E. Rep. 776. 27 Pittsburgh &c. R. Co. v. Conn, 104 Ind. 64; s. c. 1 West. Rep. 901; 3 N. E. Rep. 636; Baltimore &c. R. Co. v. Musgrave, 24 Ind. App. 295; s. c. 55 N. E. Rep. 496. But see Cleveland &c. R. Co. v. Klee, 154 Ind. 430; s. c. 56 N. E. Rep. 234; Lake Erie &c. R. Co. v. Pence, 24 Ind. App. 12; s. c. 55 N. E. Rep. 1036. 28 Lynch v. St. Joseph &c. R. Co., 111 Mo. 601; s. c. 19 S. W. Rep. 1114. 29 Pittsburg &c. R. Co. v. Adams, 25 Ind. App. 164; s. c. 56 N. E. Rep. 101. But see Washington &c. R. Co. v. Hickey, 5 App. (D. C.) 436; s. c. 23 Wash. L. Rep. 177, where it is held that this matter is sufficiently covered by an allegation that the injury was occasioned by the negligence of the defendant or their servants. which it was his duty to know.30 The complaint for injuries received while crossing a street obstructed by cars need not give the name of the servant of the railroad company authorizing the obstruction.31 Knowledge of the danger in starting a train obstructing a street without warning has been held sufficiently alleged by language that the railroad company knew that many persons were crossing between the cars of defendant's train to reach a fire in plain view of defendant's servants, and that defendant could by the exercise of reasonable care have known that persons were passing through such cars at the time of moving the train.32 § 7495. Willful and Wanton Injuries at Railroad Crossings.-The willful and wanton infliction of injuries has been held sufficiently averred in a complaint which charged defendant with willfully and wantonly striking the injured person at a highway crossing and that the employé of defendant in charge of the train did carelessly and recklessly propel said engine and cars against the injured person, who was in the act of crossing the highway crossing, and inflicted injuries from which he afterwards died.33 87496. Injuries to Animals. 34 The facts constituting negligence in this class of injury of necessity cannot be stated with a high degree of particularity, and plaintiff will be allowed to introduce evidence of negligence in failing to exercise proper effort to avoid injuring animals on the track after observing them, under an allegation charging negligence generally.35 Accordingly it has been held that evidence that a horse was so injured by a collision with a train as to necessitate killing was admissible under an allegation that the animal was killed by the collision.36 The complaint should state the time and place of the injury with as much definiteness as possible in order that defendant may locate responsibility among his servants and make Chicago &c. R. Co. v. Clough, 33 Ill. App. 129; s. c. aff'd, 134 Ill. 586; 35 N. E. Rep. 664; 45 Am. & Eng. R. Cas. 137. Southern R. Co. v. Prather, 119 Ala. 588; s. c. 24 South. Rep. 836. 32 San Antonio &c. R. Co. v. Green, 20 Tex. Civ. App. 5; s. c. 49 S. W. Rep. 670. Southern R. Co. v. Crenshaw, 136 Ala. 573; s. c. 34 South. Rep. 913. a See extended treatment of this subject in Vol. II, §§ 2133-2141, 2166-2185. Jacksonville &c. R. Co. v. Garrison, 30 Fla. 557; s. c. 11 South. Rep. 929; Jacksonville &c. R. Co. v. Jones, 34 Fla. 286; s. c. 15 South. Rep. 924; Ohio &c. R. Co. v. Craycraft, 5 Ind. App. 335; s. c. 32 N. E. Rep. 297. The negligent failure to keep a proper lookout for live stock on the track is embraced in a general averment of negligence in the running of the train: Central of Georgia R. Co. v. Edmondson, 135 Ala. 336; s. c. 33 South. Rep. 480. 35 Galveston &c. R. Co. v. Dyer (Tex. Civ. App.), 38 S. W. Rep. 218 (no off. rep.). 36 Shepard v. Kansas City &c. R. Co., 65 Mo. App. 353; s. c. 2 Mo. App. Repr. 1190. 37 39 proper investigation. The complaint must also allege that the train belonged to the defendant company, or was being run over its road.38 In States where it is required by statute that the action should be brought in the county where the injury occurred, this fact being jurisdictional must be alleged. In States where liability for injuries to cattle inflicted by the negligent operation of the railroad is made to depend upon failure to fence the road, the fact of the failure to fence must be set out, and an omission in this respect will render the complaint fatally defective. Generally an averment that a railroad company failed to maintain a gate and sufficient fence will admit evidence of any defect which renders the fence insufficient. So, 37 Little Rock &c. R. Co. v. Smith, 66 Ark. 278; s. c. 50 S. W. Rep. 502; Webster v. Atchison &c. R. Co., 57 Mo. App. 451. A declaration against a railroad company for the killing of an animal on its road, stating the county in which the killing occurred, is sufficiently specific as to the locality: Jacksonville &c. R. Co. v. Wellman, 26 Fla. 344; s. c. 7 South. Rep. 845. 28 Toledo &c. R. Co. v. Weaver, 34 Ind. 298; Pittsburg &c. R. Co. v. Troxell, 57 Ind. 246. 39 "A complaint against a railway company for killing plaintiff's horses, alleging that plaintiff owns a farm lying in the county where suit is brought, and that his horses entered on the railroad track at an unfenced point on the lands of an adjoining owner, is sufficient to show that the horses were killed in the county where the suit is brought: Chicago &c. R. Co. v. Wheeler, 14 Ind. App. 62; s. c. 42 N. E. Rep. 439. A complaint based upon Burns' Rev. Stat. Ind. 1901, $$ 5312-5318, for the killing of a cow upon a railroad track, sufficiently shows that the animal was killed in the county in which the action was brought by averring that the defendant operated a railroad in such county between certain places and while the cow was on its track she was struck and hit by defendant's locomotive and train, thrown from the track and was killed: Lake Erie &c. R. Co. v. Rinker, 16 Ind. App. 334; s. c. 45 N. E. Rep. 80. 40 Indianapolis &c. R. Co. v. Sparr, 15 Ind. 440; West v. Hannibal &c. R. Co., 34 Mo. 177; Menard v. Montana Cent. R. Co., 22 Mont. 340; s. c. 56 Pac. Rep. 592; St. Louis &c. R. Co. v. McReynolds, 24 Kan. 368; 41 Indianapolis &c. R. Co. v. Brucey, 21 Ind. 215. A declaration alleging that it was defendant's duty under Fla. Acts 1887, chap. 3742, to erect and maintain suitable fences on the side of its railway tracks sufficient to exclude livestock; that it failed to do so at a point which was not in a town or city or at a public road crossing; and that, because thereof, plaintiff's cows of a designated value strayed upon the track and were killed by a passing train,-states a good cause of action: Jacksonville &c. R. Co. v. Prior, 34 Fla. 271; s. c. 15 South. Rep. 760. Stock is sufficiently shown to have been running at large and killed for want of a fence, under Iowa Code, § 1289, regarding the liability of railroad companies for stock killed upon their tracks, by allegations that it escaped from a pasture upon defendant's track through a defective gate which defendant had carelessly and negligently constructed in an unskillful manner and of unsound and unsafe material: Morrison v. Burlington &c. R. Co., 84 Iowa 663; s. c. 51 N. W. Rep. 75. Evidence that stock got upon a railroad track through a gate at a farm crossing carelessly left open is inadmissible under a complaint in an action against the receiver of the company to recover for the killing of the stock declaring solely upon the neglect of the defendant to maintain a fence sufficient to turn stock as required by the Ohio statute: Megrue v. Lennox, 59 Ohio St. 479; s. c. 41 Ohio L. J. 172; 52 N. E. Rep. 1022. 41 McCoy v. Southern &c. R. Co., 94 Cal. 568; s. c. 29 Pac. Rep. 1110; aff'g s. c. 26 Pac. Rep. 629. 42 43 44 evidence admitted without objection that the fastenings of a gate of a fence on a railroad company's right of way had become unsafe and had remained so a long time and were unsafe when plaintiff's horse escaped on the track was held not a fatal variance from an allegation that defendant negligently constructed the gate with defective fastenings. If the complaint is based on the ground of neglect of the company to fence the track in accordance with an agreement with the owner, that fact should be alleged, and not merely that they were killed through defendant's negligence." A complaint based on a failure to maintain or keep in proper condition a cattle-guard is demurrable if it does not set forth that the cattle-guard in question was located at a place required by law. A complaint in a case for injuries to animals is not bad because it states two grounds of negligence, one in failing to maintain a fence and the other in failing to see the animals in time to prevent running upon them.15 Under the rule of pleading requiring conformity of the proof to the allegation of specially alleged negligence, it has been held that evidence that a fence along side of a track was out of repair and that the horses came through an open gate in the fence and were killed upon the track was inadmissible in the absence of any allegation in the complaint showing that the gate was left open or allowed to remain open through defendant's negligence which operated as the proximate cause of the injury.46 47 § 7497. Horses Frightened by Escape of Steam and Other Noises. In a case of this kind the pleading may characterize the act of defendant as being done negligently without showing all the various facts from which the negligence may be deduced. Thus an allegation that steam was blown off negligently, wrongfully, and unlawfully, whereby horses were frightened, and ran away, will imply that the steam was blown off needlessly and unnecessarily.48 But a com "Missouri &c. R. Co. v. Pfrang, 7 Kan. App. 1; s. c. 51 Pac. Rep. 911. Gulf &c. R. Co. v. Washington, 49 Fed. Rep. 347; s. c. 4 U. S. App. 121; 1 C. C. A. 286. "Southern R. Co. v. Harrell, 104 Ga. 602; s. c. 11 Am. & Eng. R. Cas. (N. S.) 859; 30 S. E. Rep. 821. Hill v. Missouri &c. R. Co., 49 Mo. App. 520. Jahant v. Central &c. R. Co., 74 Cal. 9; s. c. 15 Pac. Rep. 362. 47 Illinois &c. R. Co. v. Larson, 42 Ill. App. 264. A complaint charging that the servants of a railroad company so carelessly and negli gently ran and managed its locomotive in proximity to a crossing as to cause and suffer it, by blowing of its whistles and suffering its steam to escape from it, "to make loud and unusual noises" and thereby frighten plaintiff's horse and cause an injury,-is not bad upon demurrer as charging only acts which the defendant had a right to perform on its own grounds: Indianapolis Union R. Co. v. Boettcher, 131 Ind. 82; s. c. 28 N. E. Rep. 551. 48 Omaha &c. R. Co. v. Clark, 35 Neb. 867; s. c. 53 N. W. Rep. 970. plaint alleging negligence in this respect will not support a recovery on the ground that it was negligence to stop the engine at the place where the steam was allowed to escape." 49 § 7498. Fire Set Out by Locomotive.-What is here said of pleading in this form of negligence is but supplementary of matter presented in an earlier volume to which the reader is referred.50 Under the general rule the complaint is sufficient where it alleges that the fire was caused wholly by the negligence of defendant, and it is not necessary to state in detail the facts constituting the negligence.51 In States where the statutes make the railroad company an insurer against fires communicated from its engines, an express charge of negligence is unnecessary.52 So, in an action under the Minnesota statute providing that the fact that fire is scattered or thrown from an engine or cars is prima facie evidence of negligence of the employés or of defects in the engine, an allegation that the company negligently permitted the engine to drop and scatter coals and sparks of fire is sufficient to admit evidence of negligence in the condition of the engine or the operation thereof.53 For very obvious reasons, the law does not impose upon the person whose property is injured by fire set out by locomotive, the duty of stating what train or engine set out the fire. There is not entire harmony in the decisions as to the A declaration simply averring that, by reason of the negligent and improper running of defendant's railroad train and blowing of the whistle of its locomotive, a horse, being driven on the highway, was frightened; that the horse overturned the wagon; and that plaintiff was thereby thrown out and injured, though not specific enough for good pleading, may stand as against a general demurrer; Race v. Eatson &c. R. Co., 62 N. J. L. 536; s. c. 41 Atl. Rep. 710. Louisville &c. R. Co. v. Schmidt, 134 Ind. 16; s. c. 33 N. E. Rep. 774. 30 See Vol. II, §§ 2353-2365.. 49 51 Alabama Great Southern R. Co. v. Clark, 136 Ala. 450; s. c. 34 South. Rep. 917; Pittsburgh &c. R. Co. v. Wilson, 161 Ind. 701; s. c. 66 N. E. Rep. 899; Brinkman v. Bender, 92 Ind. 234. An allegation that defendant railway company negligently operated its engine so as to permit the escape of sparks, which set fire to certain cedar timber on its right of way, was a sufficient allegation of negligence to admit proof not only of the careless handling of the en gine, but of its insufficient construction and equipment: San Antonio &c. R. Co. v. Home Ins. Co. (Tex. Civ. App.), 70 S. W. Rep. 999. 52 Fort Scott &c. R. Co. v. Tubbs, 47 Kan. 630; s. c. 28 Pac. Rep. 612; 49 Am. & Eng. R. Cas. 685; St. Louis &c. R. Co. v. Snaveley, 47 Kan. 637; s. c. 28 Pac. Rep. 615; Campbell v. Missouri &c. R. Co., 121 Mo. 340; s. c. 25 L. R. A. 175; 25 S. W. Rep. 936; Polhans v. Atchison &c. R. Co., 45 Mo. App. 153; MacDonald v. New York &c. R. Co., 23 R. I. 558; s. c. 51 Atl. Rep. 578. 53 Weber v. Winona &c. R. Co., 63 Minn. 66; s. c. 65 N. W. Rep. 93. 54 Chicago &c. R. Co. v. Kreig, 22 Ind. App. 393; s. c. 53 N. E. Rep. 1033; Baltimore &c. Co. v. Countryman, 16 Ind. App. 139; s. c. 44 N. E. Rep. 265. In an action for the destruction of property by fire set. by a locomotive, where the complaint does not designate the particular engine, and the evidence shows that the fire originated from one of two locomotives, evidence that these and other engines had |