that in doing so he received the injuries complained of, satisfies the requirement of certainty and definiteness in pleading such an injury.18 Proof that a passenger upon a street car jumped from the car in a reasonable effort to avoid injury from collision is not a fatal variance from a declaration alleging that she was pushed and shoved from the car by other passengers endeavoring in a reasonable manner to avoid injury from such collision.14

§ 7511. Refusal to Stop Train at Station.-A complaint in an action for refusing to stop a train at a flag station to let off a passenger whose ticket called for the station beyond, must show that the ticket entitled plaintiff to require the conductor to stop is train at such flag station.15 Where damages are sought for refusing to accept a ticket to a designated place, a failure to allege in the complaint that the train plaintiff took was scheduled to stop at that place renders it bad, and the defect is not remedied by an allegation that there was a regular station and the crossing of two other roads there, and that the company was compelled by law to stop all trains there and did not stop its train and allow the plaintiff and others to alight.16

§ 7512. Passengers Injured while Riding on Platform.—A paragraph of a complaint for negligently inflicting injury on a passenger alleging that such passenger boarded one of defendant's cars and went upon the front platform, from which he was thrown, and that defendant had a rule of permitting passengers that were smoking to stand upon the front platform, and that smoking elsewhere on such car was prohibited, should not be stricken out as irrelevant, although there is no allegation that the person injured was smoking."7

§ 7513. Ejection of Passengers. 18-In an action for the wrongful ejection of a passenger where the removal is alleged to have been. willfully, violently, and forcibly made, good pleading requires that the facts constituting the willfullness exercised by the conductor should be set out.19 A complaint will be insufficient which fails to

13 Depp v. Louisville &c. R. Co., 14 S. W. Rep. 363; s. c. 12 Ky. L. Rep. 366 (no off. rep.). See also, Cooper v. Georgia &c. R. Co., 56 S. C. 91; S. c. 34 S. E. Rep. 16.

14 Washington &c. R. Co. v. Hickey, 5 App. (D. C.) 436; s. c. 23 Wash. L. Rep. 177.

15 Matthews v. Charleston &c. R. Co., 38 S. C. 429; s. c. 17 S. E. Rep. 225.

allege that plaintiff surrendered, or offered to surrender, his ticket to the conductor or that he tendered the usual fare, although it alleges the purchase of the ticket.20 One wrongfully expelled from a train in motion and receiving injuries need not allege the rate of speed, and if he does he is not required to prove the rate as laid in the complaint.21 Proof that a passenger was so frightened by the conductor that he jumped off the car is not a material variance from allegations that he was knocked and kicked from the train, where forcing him off the train in a wrongful manner is the gravamen of the complaint.22

$7514. Averment that Wrongful Act of Servant was within Scope of his Duties. That a railway passenger was injured by the wrongful act of the company's employé, committed in the course or within the scope of his employment, has been held sufficiently stated in a complaint alleging that plaintiff, while getting on a platform of defendant's car, was carelessly or negligently pushed off by one of defendant's servants or agents, and that his injuries were caused by carelessness and negligence in pushing him off the train, and in negligently running over him, without any negligence on plaintiff's part.23

§ 7515. Breach of Duty Need Not be Averred.-A complaint against a railroad company for injury to a passenger, need not specify the duty of the defendant in the premises, where it distinctly alleges facts amounting in law to a breach of duty, nor need it allege that the defendant is a common carrier.24

§ 7516. Allegation of Service of Notice of Injury.-An allegation that the plaintiff "duly" gave notice of the time, place, and cause of the injury is sufficient, and the time of giving notice need not be averred.25

$ 7517. Not Necessary to Allege that the Injury Happened in Consequence of the Passenger Acting in a Particular Way under the Impulse of Terror Produced by the Accident.-The rule is that where an accident happens to the carrier's vehicle, or where his stage overturns or his car runs off the track, a passenger who acts erroneously

20 White v. Evansville &c. R. Co. 133 Ind. 480; s. c. 33 N. E. Rep. 273. Illinois &c. R. Co. v. Davenport, 177 Ill. 110; s. c. 52 N. E. Rep. 266; aff'g s. c. 75 Ill. App. 579.

22 Texas &c. R. Co. v. Williams, 62 Fed. Rep. 440; s. c. 10 C. C. A. 463.

23 Louisville &c. R. Co. v. Kendall, 138 Ind. 313; s. c. 36 N. E. Rep. 415. 24 Atlantic &c. R. Co. v. Laird, 58 Fed. Rep. 760; s. c. 7 C. C. A. 489. Steffe v. Old Colony R. Co., 156 Mass. 205; s. c. 30 N. E. Rep. 1137.

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under the impulse of the sudden terror occasioned by the accident, and who thereby receives a hurt which he would not have received if he had remained in his seat, may nevertheless recover damages for the hurt so received. The original accident, and not the erroneous conduct of the passenger, is deemed the proximate cause of the injury.26 It is not necessary, however, for a plaintiff injured in this way to allege that fact in his declaration or complaint. It is sufficient that he allege that he was injured through the happening of a described accident, such as the overturning of the defendant's stage, the derailment of his car, or the like. It has been said, however, that it is better, if practicable, that the complaint should allege the fright and the manner in which the plaintiff was hurt, in order to forestall any claim of surprise on the defendant's part as a ground of continuance. But, nevertheless, such allegations are not only not necessary to the statement of the cause of action; but evidence of the fright or manner in which the passenger acted is not irrelevant where there is no such allegation in the pleading; nor is proof of them a variance, or a failure to prove the cause of action as alleged.27

§ 7518. Carriers of Goods.-Where an unreasonable and long delay in a shipment of freight is averred, and that this was negligence, a further statement of the facts is unnecessary.28 In an action against a carrier for delay in delivering machinery, an allegation setting up. the delay and asking judgment for the rental of the machine during the time of delay, is sufficient against a general demurrer without an allegation that plaintiff knew the purpose for which it was to be used; but this knowledge must be proved on the trial to entitle the plaintiff to a judgment.29 A general averment of negligence is sufficient in actions for injuries to goods in course of transportation unless the pleading is attacked by a motion to make more specific and certain.30 The fact that goods were shipped under a special contract exacted by the carrier as a condition of transportation is a matter of defense and need not be set out in the complaint.31

26 Ingalls v. Bills, 9 Metc. (Mass.) 1; Stickney v. Maidstone, 30 Vt. 738; Frank v. Potter, 17 Ill. 406; Page v. Buckport, 64 Me. 51; Twomley v. Central Park &c. R. Co., 69 N. Y. 158; s. c. 25 Am. Rep. 162. 27 Smith v. St. Paul &c. R. Co., 30 Minn. 169; s. c. 14 N. W. Rep. 797. 28 Alabama &c. R. Co. v. Pounder, 82 Miss. 568; s. c. 35 South. Rep. 155. Gulf &c. R. Co. v. Pettit, 3 Tex.

Civ. App. 588; s. c. 22 S. W. Rep. 761.

30 Union Pac. R. Co. v. Vincent, 58 Neb. 171; s. c. 78 N. W. Rep. 457.

31 Southern Pac. Co. v. Arnett, 11 Fed. Rep. 849; s. c. 50 C. C. A. 17. But see Lake Erie &c. R. Co. v. Holland, 162 Ind. 406; s. c. 69 N. E. 138; 63 L. R. A. 948; Pennsylvania Co. v. Walker, 29 Ind. App. 285; s. c. 64 N. E. Rep. 473.

7519. Carrier of Animals.-It is not necessary for plaintiff to set forth in detail the precise terms of his contract of shipment.32 The pleader, having shown negligence, must go farther and show that the negligence charged caused the injury. Thus, for example, a complaint stating that plaintiff shipped horses over defendant's railroad and that when they arrived at their destination, defendant refused to place the car in position to unload the horses, which it was its duty to do, and side-tracked it until the following day, and that while car was so side-tracked, and in defendant's charge, the horses were injured, was held defective and not to state a cause of action, as it failed to show that the injuries resulted from the negligent acts alleged. Under a complaint in an action against a railroad company which charges delay in the train in which animals are shipped and also failure to furnish opportunity for feeding and watering the stock, the plaintiff may recover upon showing that defendant omitted to perform its duty in the latter respect, although it was not liable for the delay of the train.84

7525. Particularity and certainty of 7535. Injury where set to work at a

§ 7522. Complaint should Allege Existence of Relation between the Parties. The pleader in an action for injuries to an employé should distinctly allege that the relation of master and servant existed between the parties at the time the injuries were received.1 An allegation in a declaration by an employé against a corporation for personal injuries, that plaintiff, at the time of receiving the injuries, was, and had for a long time been, employed by the defendant in and about its grounds, buildings and machinery, to assist in the work of carrying on its foundry business, and at the time of receiving such injuries was engaged in said employment on its grounds, near a certain pile of iron posts or columns, has been held to set forth his relation to the corporation as its servant or employé, engaged in the duties of his employment, and to show that it was bound to exercise due care not to expose him unnecessarily to injury. But a declaration by an administratrix containing a single count, alleging that her intestate was killed through the negligence of defendants when he was "legally at work" in defendant's quarry, and when he was "employed and lawfully at work in defendant's quarry by the license and permission and at the request of the defendants," was held insufficient because. it did not show in what capacity the intestate was employed in the quarry, for example, whether as a servant of defendants or of an independent contractor, or as a licensee. A variance between an averment that plaintiff was the employé of a railroad company, and proof that he was employed by its lessee and injured through the lessor's negligent construction of the road, has been held an immaterial variance, as the defendant was not misled thereby to his prejudice.*

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$ 7523. Generally as to Allegations of Duty.-With reference to the manner of setting forth a cause of action in cases under this head, the pleader should first recur to the well-settled rule of pleading, that a mere allegation that the defendant was under a duty to do or not

1 Gulf &c. R. Co. v. Gorman, 6 Tex. Civ. App. 230; s. c. 25 S. W. Rep. 992; Wendell v. Pennsylvania R. Co., 57 N. J. L. 467; s. c. 31 Atl. Rep. 720. But see Chicago &c. Gas Co. v. Myers, 64 Ill. App. 270; s. c. 1 Chic. L. J. Wkly. 276.

2 Di Marcho V. Builders' Iron Foundry, 18 R. I. 514; s. c. 27 Atl. Rep. 328.

3 Boardman v. Creighton, 93 Me. 17; s. c. 44 Atl. Rep. 121.

4 Lee v. Southern &c. R. Co., 116 Cal. 97; s. c. 47 Pac. Rep. 932; 38 L. R. A. 71.