to do a certain thing will not be sufficient, unless facts are stated from which such a duty arises; because, without such a statement of facts, the pleader states a mere conclusion of law, which may or may not be pertinent to the case, according as there may or may not be facts to support it. On the other hand, if the pleader states facts from which such a duty arises as a conclusion of law, a supplemental statement that such a duty existed will not vitiate the pleading, but will be treated as surplusage."

§ 7524. Allegation that Plaintiff was Acting Within the Scope of his Employment.-The complaint in an action against a master for injuries to a servant should set forth facts showing that the servant, when injured, was acting within the scope of his employment." Where the allegation is made generally the pleader should be required to state the particular work plaintiff was engaged in at the time of receiving the injuries complained of. An allegation that the work at which the injured person was engaged, by his employer's orders, when injured, was entirely different from the work he was employed to do and was more hazardous and dangerous and had to be performed with different workmen and with appliances and in a place different from those of the work he was employed to do, sufficiently shows that the injuries were received while performing work for which the servant was not originally employed."

§ 7525. Particularity and Certainty of Averment-Illustrations. -The rules heretofore considered,10 with reference to particularity and certainty in averments of negligence, generally apply here, and an employé is not required to plead defendant's negligence more specially than any other person. The complaint should state facts from which the law will raise a duty from the employer to his employé and from the neglect of which the law will presume negligence. If it fails to do so it is insufficient to support a judgment.11 A complaint stating

'Hayden v. Smithville Man. Co., 29 Conn. 548; Royce v. Schroeder, 21 Ind. App. 28; s. c. 1 Repr. (Ind.) 55; 51 N. E. Rep. 376.

Chitty's Pl. 236, 243, 566. 'West Chicago Street R. Co. v. Coit, 50 Ill. App. 640; Stagg v. Edward Westen Tea &c. Co., 169 Mo. 489; s. c. 69 S. W. Rep. 391. A petition alleging negligence on the part of an employé, and about a matter falling within the regular discharge of his duties within the scope of his employer's business, and consequent injury to plaintiff,

sets forth a cause of action against
such employé's master: Thompson
v. Wright, 109 Ga. 466; s. c. 34 S.
E. Rep. 560.

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

Clark County Cement Co. V.
Wright, 16 Ind. App. 630; s. c. 45
N. E. Rep. 817.

10 See ante, § 7447, et seq.

11 Northern Milling Co. v. Mackey, 99 Ill. App. 57; Wheeler v. Berry, 95 Mich. 250; s. c. 54 N. W. Rep. 876; Galveston &c. R. Co. v. Craw

that an injury to a brakeman was caused by a defect in car couplings,. by a failure to have a sufficient number of brakemen to operate the train, and by the negligence of the conductor whose orders the brake-man was bound to obey, is sufficiently particular as to the defects and the negligence causing the injury.12 So, also, a general averment that a boiler, upon which plaintiff was set to work, was left in a dangerous position for the performance of the work, and that plaintiff was directed to perform the work by defendant's foreman, and proceeded to assist in cutting bolts, and that while so engaged a piece of metal was detached that struck him in the eye, has been held sufficient in the absence of a motion to make it more definite and certain by setting out the manner in which the work was to be done and that the detaching of the piece of metal was the result of the manner in which the boiler was placed.13 But a declaration in trespass on the case for negligence which alleged that plaintiff, while employed in defendant's mill, was injured while lifting a copper roll on a machine under orders of the foreman, and that the top of the machine, being smooth, was an unsafe place to rest such rolls, was held insufficient, as it neither alleged that the machine was defective, that one of the ob-jects of the machine was to support such rolls, nor that such was the custom in the mill.14

§ 7526. Place of the Happening of the Accident Causing Injury. -The defendant should be informed as to the place of the happening of the accident. This is particularly important in the case of an employment, such as railroad work, requiring the services of employés at different places. A complaint by a brakeman against a railroad company has been held sufficiently certain in describing the place of the injury in uncoupling a car from a locomotive, where it stated that it occurred at the junction of a switch or spur track with the main line, at or near a certain mill on the line.15 In the case of an employment at a specific place the necessity in this respect is not so great, and a complaint ordinarily will not be regarded as defective because of a failure to allege the exact location of the accident, as this is a

ford, 9 Tex. Civ. App. 245; s. c. 29 S. W. Rep. 958. So, an averment that a coal hole was carelessly and negligently left open by defendant's agent, servant, and employé has been held sufficient, when challenged for the first time by an objection to the introduction of evidence, as an averment that the negligence pertained to the duty of the servant's employment and was commit

ted during the employment: Todd v. Havlin, 72 Mo. App. 565.

12 Georgia &c. R. Co. v. Probst, 85 Ala. 203; s. c. 4 South. Rep. 711.

13 Golley &c. Iron Works v. Callan, 1 Ohio Dec. 130; s. c. 9 Ohio C. C. 217.

14 Milhench v. Jenckes Man. Co., 24 R. I. 131; s. c. 52 Atl. Rep. 687.

15 Missouri &c. R. Co. v. Woods (Tex. Civ. App.), 25 S. W. Rep.. 741.

matter as much in the knowledge of the defendant as that of the plaintiff.16

17

§ 7527. Allegation as to Safety of Place for Work.-The complaint for injuries caused by a failure of the master to furnish a safe place to work should set out the facts showing wherein the danger consisted and the causal connection between the defective place and the injury. It is not necessary to allege also that it was the duty of the master to furnish a safe place for employés, because that is a conclusion of law which arises from the statement of the necessary facts.18 Where the failure to furnish a place of safety for workmen is sufficiently alleged, it is unnecessary to plead the name of the particular employé charged with the duty of using due care in this respect.19 A complaint has been held sufficient to withstand a demurrer which alleged that while deceased was employed on a certain building which defendants were engaged in constructing, they, in disregard of their duty to provide a reasonably safe place for him to work, negligently permitted and suffered the flooring to be and remain in such an unsafe and insecure condition that the deceased fell through and was killed, and that his death was caused solely because of the carelessness and negligence of the defendants.20 A complaint was held sufficient within the rules which alleged that defendants, upon a certain day, were in possession of a steam saw-mill, running and managing the same in the manufacture of lumber, and that plaintiff, by reason of the insufficiency of the building being erected by defendants for a cover of the mill in which plaintiff was employed, was greatly injured by the falling of said house, and that defendants did not use due care but that plaintiff did.21 In another court, it was held that a complaint alleging that the cause of the injury to a railroad employé was

16 Southern R. Co. v. Guyton, 122 Ala. 231; Whatley v. Zenida Coal Co., 122 Ala. 118; Augusta v. Owens, 111 Ga. 464; s. c. 36 S. E. Rep. 830; Woodson v. Johnson, 109 Ga. 454; Lee v. Reliance Mills Co., 21 R. I. 322.

"Lauter v. Duckworth, 19 Ind. App. 535; s. c. 48 N. E. Rep. 864. Allegations in a complaint by a car coupler for personal injuries that while he was coupling the cars he stepped between the rails, as was usual and necessary, when his foot was caught between the cross-ties and run over by a car wheel; that such ties were too close together, the spaces between them not being

filled; and that the iron on the tracks was old and worn and had sharp hangs or prongs protruding from its inner edges, of the dangerous condition of which cross-ties and track plaintiff was ignorant,— states a cause of action: Preston v. Central R. &c. Co., 84 Ga. 588; s. c. 11 S. E. Rep. 143.

18 Cribben v. Callaghan, 156 Ill. 549; s. c. 41 N. E. Rep. 178; aff'g s. c. 57 Ill. App. 544.

19 Woodbury v. Post, 158 Mass. 140; s. c. 33 N. E. Rep. 86.

20 Pizzi v. Reid, 72 App. Div. (N. Y.) 162; s. c. 76 N. Y. Supp. 306. 21 Hearn v. Quillen, 94 Md. 39; s. c. 50 Atl. Rep. 402.

a pole which was "too near the track," was subject to a special demurrer because it did not allege how near the pole was to the track.2

§ 7528. Defecive Appliances Furnished Employé.-Where the injury received is caused by defective appliances furnished by the master the plaintiff should allege the negligence in this respect or the facts from which such negligence may be inferred,23 and that this negligence was the proximate cause of the injury. The pleader is not required to specify the defects with great particularity, the rule being satisfied by a general averment of a defect in a particular tool or appliance.25 Thus, it has been held that a complaint sufficiently

27

alleged negligence of defendant in this respect by stating that the defect existed before the injury was inflicted, and that it arose from or had not been discovered or remedied owing to defendant's negligence, although it did not state how long the defect had existed before the injury.26 But a complaint which alleged that defendant negligently omitted to provide for the repair of a certain machine described on which plaintiff was employed, whereby the machine became dangerous, and that this fact was well known to defendant, without alleging in what respect defendant omitted to provide for repairs, was held insufficient. In another case, a complaint which averred that "defendant did not provide good, proper, and suitable tools or implements with which to do the work which plaintiff was performing for defendant, but only the steel bar as aforesaid," without averring that defendant knew, or ought to have known, that the steel bar was unsafe and unsuitable for the purpose or that there was negligence in its selection, was held to fail to state a cause of action at common law, since the master does not guarantee that the appliances he furnishes an employé shall be entirely free from defects.28 It follows that the complaint should allege facts to show that the injury complained of was not the result of some hazard of the service assumed by the employé.29 Where the defects have been averred particularly the plain

pair; that when the rope ran off the pulley, it obstructed the operation of the machinery, and it was plaintiff's duty to replace, it; and that he was injured while doing so,-sufficiently shows that the plaintiff was injured while employed in operating the "traveller," and that it was the result of the defendant's negligence in not repairing the defective machinery: Romona Oolitic Stone Co. v. Johnson, 6 Ind. App. 550; s. c. 33 N. E. Rep. 1000.

26 Louisville &c. R. Co. v. Hawkins, 92 Ala. 241; s. c. 9 South. Rep. 271.

27 Clark v. Diamond State Steel Co., 2 Pen. (Del.) 522; s. c. 47 Atl. Rep. 1014.

2 Clements v. Alabama &c. R. Co., 127 Ala. 166; s. c. 28 South. Rep. 643.

Ames v. Lake Shore &c. R. Co., 135 Ind. 363; s. c. 35 N. E. Rep. 117. A complaint in an action to recover for injuries sustained by the giving way of a window casing in the building on which plaintiff was at work alleged that the unsound condition of the building was unknown

It

to plaintiff and could not have become known to him by the exercise of ordinary care, and also that defendants carefully examined the house, or knew or ought to have known its condition and the strength of the casing, and that defendants assured plaintiff of the safety of working in that manner. There was no allegation that defendants knew of the defect in the casing, or that they had informed plaintiff that they had made examination of it and that the house was safe, and that the work was performed on the faith thereof. was held that, the alleged defect being latent and not apparent by observation, the complaint was insufficient to state a cause of action: Hencke v. Ellis, 110 Wis. 532; s. c. 86 N. W. Rep. 171. An allegation in a complaint in an action against a railroad company for the death of an employé, that he did not know of the use of blocks in switches, or other devices to protect against accidents caused by catching one's foot, authorized the conclusion that none of the switches on defendant's road were blocked and that he