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sidewalk in front of a certain lot on the north side of a certain street has been held a sufficient allegation of place;29 and so with an allegation that the accident occurred on the south side of a street named, in front of the premises owned by a person named.30 The objection that the complaint stating the location is not sufficient is to be taken advantage of by a motion to make more definite and not by demurrer.31 Thus, an allegation in a complaint locating the defect in a sidewalk on a designated highway in the town and between certain highway sections of an adjoining town has been held a sufficient designation of the place of the defect as against a plea of the general issue.32 In another case it was held that an averment that the city, by its park · board, negligently maintained a rope across a boulevard, and, on the day named in the complaint, plaintiff, while travelling on his bicycle on the boulevard, without knowledge of the rope, was injured thereby, sufficiently alleged that the locus in quo was a public street, for defects in which the city was liable. An allegation that the plaintiff was injured while “walking along the sidewalk” is equivalent to an allegation that he was injured while walking on the sidewalk.34

$7559. Describing the Defect which Caused the Injury.-It will be hardly necessary to suggest that the plaintiff cannot charge the negligence of the defendant to have consisted in a given defect, and then recover on proof of an injury caused by some other defect, the two being totally different, and especially where there is a statute requiring him to give notice to the municipal authorities of the injury and the defect which caused it.35 The complaint in an action for injuries received by falling upon a sidewalk should definitely allege that the sidewalk was in an unsafe condition for ordinary travel.36 A general allegation that the walk was defective and out of repair at the place named, or at most stating briefly in what the defect consisted, is generally regarded as a sufficiently definite description of the defect.37 An allegation that a traveller stepped in a hole or cavity in a sidewalk beneath a tipping board or boards, where they were loose and not fastened, so that when two persons were walking thereon,

29

Nappanee v. Ruckman, 7 Ind. App. 361; s. c. 34 N. E. Rep. 609. 30 Clark v. North Muskegon, 88 Mich. 308; s. c. 50 N. W. Rep. 254. 31 Orlando v. Heard, 29 Fla. 581; s. c. 11 South. Rep. 182.

32 Whoram v. Argentine Twp., 112 Mich. 20; s. c. 70 N. W. Rep. 341; 3 Det. L. N. 867.

Kleopfert v. Minneapolis (Minn.), 95 N. W. Rep. 908.

"Nappanee v. Ruckman, 7 Ind. App. 361; s. c. 34 N. E. Rep. 609.

35 Dale v. Webster County, 76 Iowa 370; s. c. 41 N. W. Rep. 1; Gagan v. Janesville, 106 Wis. 662; s. c. 82 N. W. Rep. 558.

36 Plummer v. Milan, 70 Mo. App.

598.

37 Barney v. Hartford, 73 Wis. 95; s. c. 40 N. W. Rep. 581.

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one's foot might be caught and the person thereby be thrown to the ground, sufficiently showed the defect when challenged by a demurrer.38 An allegation that a sidewalk was so defectively built that when a pedestrian stepped upon the edge of it, it would tip up and throw him to the ground, and that plaintiff was injured in that manner, without fault on her part, sufficiently shows facts constituting negligence on the part of the municipality and is good on demurrer. A declaration for injuries sustained on a defective sidewalk, averring that the walk was originally constructed of cement, which had been taken up, leaving a depression, on either side of which were placed planks, which were old and warped, and describing with particularity the manner of the injury, sufficiently apprises the city of the plaintiff's claim. In an action under a statute making a city liable for any damages which shall happen by reason of the insufficiency or want of repairs of any street within its limits, an allegation that the sidewalk was in a defective, insufficient, and dangerous condition, is sufficient, as charging that it was not reasonably safe for public use.11 Where the complaint alleges facts showing the unsafe condition of the sidewalk, it is not necessary to state in express terms that the sidewalk was unsafe and dangerous.12 A complaint alleging that the walk was permitted to be built by the village in such a dangerous manner that plaintiff, while exercising due care, by reason of the defective building of such walk, was injured by a plank, which tipped and threw him, is demurrable in not alleging in what manner the walk was defective.13

40

§ 7560. Objects in Highway Calculated to Frighten Horses.-The complaint in an action for injuries caused by the fright of horses at objects permitted to occupy the highway should state the length of time that the object was permitted to remain in the place described and allege that the objects naturally tended to frighten ordinarily roadworthy horses and that the animal in question was such an animal.**

38 Nappanee v. Ruckman, 7 Ind. 361; s. c. 34 N. E. Rep. 609.

39 Eskridge v. Lewis, 51 Kan. 376; s. c. 32 Pac. Rep. 1104. For a complaint held bad because, while it alleged certain conditions of the highway, it did not attribute the injury to them, and, although alleging that the injuries were caused by the defective condition of such highway, did not show what defect, and while one defect was set forth, it was not shown to be the only one, or identified as the one which

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§ 7561. Averring that Defect was Proximate Cause of Injury.-In every case where damages are sought for an injury which is the result of municipal negligence, it is manifestly necessary to aver in some form of language that the defect was the cause of the injury.45 For example, the mere fact that a bridge was defective and that a traveller's horse was injured does not exhibit a cause of action against a county, because it does not show any causal connection between the defect and the injury,—in other words, it does not show that the defect caused the injury. "Facts must be pleaded which show the connection between the negligent act and its consequences. Mere conclusions will not suffice." But a complaint which alleges that the death of plaintiff's child was caused by the negligence of defendant city in constructing a culvert in such a manner that it was easily obstructed, and that the water in which the child was drowned was thus accumulated at the side of the street, is not defective for the reason that the immediate cause of the child's death was the accumulation of water and not the defective construction of the culvert, as the latter was the proximate cause of the death. It is not necessary to aver in so many words that the defect was the proximate cause of the injury; if the facts that are stated show that this was so, it is sufficient. Thus, a complaint which charged that, as a wagon was being carefully driven down an incline from one street into another, the wheels suddenly dropped into a deep hole in the street, the nature of which was concealed by muddy water which filled it, whereupon plaintiff was thrown onto the whiffletrees, and though the horses were ordinarily gentle, they became frightened and ran, and plaintiff was thrown to the ground and injured, sufficiently showed that defendant's negligence in not filling the hole in the street was the proximate cause of the injury.18

§7562. Snow and Ice on Sidewalk.-In an action for injuries sustained by falling on ice on a sidewalk, a count of the complaint

45

Logansport v. Kihm, 159 Ind. 68; s. c. 64 N. E. Rep. 595; Bodah v. Deer Creek, 99 Wis. 509; s. c. 75 N. W. Rep. 75. A complaint in an action against a city for injuries, owing to a defect in a street, alleging that the drainage and grading of the street were faulty, as defendant knew, and that by reason thereof there was a washout, and that defendant had, or might have had, knowledge of the dangerous condition, was insufficient for not alleging the dangerous condition to have

been caused by acts of omission or commission on the part of defendant: Indianapolis v. Crans, 28 Ind. App. 584; s. c. 63 N. E. Rep. 478.

40 Harris v. Vigo County, 121 Ind. 299; s. c. 23 N. E. Rep. 92. See also, Louisville &c. R. Co. v. Good, 113 Ind. 544; Louisville &c. R. Co. v. Thompson, 107 Ind. 442; Wabash Co. v. Pearson, 120 Ind. 426.

47 Elwood v. Addison, 26 Ind. App. 28; s. c. 59 N. E. Rep. 47.

48 Shearer v. Buckley, 31 Wash. 370; s. c. 72 Pac. Rep. 76.

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alleging that the defendant negligently allowed water collected on its premises by its own act to escape to the sidewalk in freezing weather is not demurrable, on an assumption that the water complained of was surface water, because the declaration fails to state that it was not,— the allegation that the water was collected by the defendant's own act rebutting any inference that it was simply water which had fallen on the land and was flowing from it. An allegation in a complaint in an action for injuries caused by an alleged defective sidewalk that the sidewalk at a certain place had fallen about four inches below the level, and snow and ice had carelessly and negligently been allowed to accumulate and remain there, so as to make the sidewalk unsafe and dangerous, is indefinite as an allegation of negligence.50 It has been held that a plaintiff suing a village for personal injuries. alleged to have been sustained by falling upon ice accumulating in a depression in the sidewalk cannot recover upon proof that the iceaccumulated because of the faulty construction and obstructions of a gutter, the variance being regarded as material and fatal.51

§ 7563. Failure to Aver Special Injury by Maintenance of Public Nuisance. Upon a principle much considered in the law of nuisance, a complaint in an action for damages by a private person which avers a public nuisance or other public injury, but which fails to aver a special injury or damage to the plaintiff, will be held to state no cause of action. Thus, a complaint showing that a certain bridge is a public nuisance, but not alleging special damages, will not support a suit by an individual for damages against the person or corporation maintaining it.52

§ 7564. Injuries Caused by Defects in Bridges.-Under a principle which regards a bridge as a part of the highway, an allegation that the injury was received on a highway by reason of its insufficiency and want of repair has been held to state sufficiently a causeof action for an injury received upon a bridge on the highway.53 Negligence of a county both in constructing and maintaining the bridge, and that deceased, who received injuries thereon, was without fault, were held sufficiently alleged in a complaint which averred that the county negligently constructed a bridge and accepted it from the

49 Benard v. Woonsocket Bobbin Co., 23 R. I. 209; s. c. 51 Atl. Rep. 209.

50 Koepke v. Milwaukee, 112 Wis. 475; s. c. 88 N. W. Rep. 238.

51 Woolsey v. Ellenville, 69 Hun

(N. Y.) 489; s. c. 23 N. Y. Supp. 410; 52 N. Y. St. Rep. 720.

52 Alabama &c. Nav. Co. v. Georgia Pac. R. Co., 87 Ala. 154; s. c. 6. South. Rep. 73.

53 Cook v. Barton, 63 Vt. 566; s.. c. 22 Atl. Rep. 663.

contractor with defective timbers therein, rendering it unsafe, and per-mitted it to remain unsafe and out of repair, so that it was dangerous to pass over it in the ordinary use of the highway, of which fact the county had notice, and that deceased, not knowing its condition, attempted to pass over it with a portable traction engine, when the bridge gave way and precipitated the engine into the stream below and he sustained injuries from which he died.5 Negligence in fail-ing properly to safeguard the approach to a bridge has been held sufficiently averred in a complaint alleging that deceased met his death from no fault of his while driving a team and wagon up the steep approach to a bridge, the approach being a high embankment which defendants negligently failed to barricade and protect.55

§ 7565. Pleading Absence of Contributory Negligence. In jurisdictions where the plaintiff must negative in his complaint the existence of contributory negligence on his part, it is sufficient to aver generally that the plaintiff was without fault, unless the facts specifically pleaded show that the plaintiff or person injured was guilty of con-tributory negligence, in which case the complaint would be bad, notwithstanding this general averment.56 But a complaint is not bad as. showing contributory negligence merely because it avers that the person injured had knowledge of the defect which caused the injury;57 though such knowledge is always an important fact for the consideration of the jury on the question of such negligence.58 The rule in other jurisdictions, that freedom from contributory negligence need not be specially alleged in the complaint, applies likewise to an action against a city for injuries received while crossing a street at another place than a regular crossing or street intersection.59 Contributory negligence has been held sufficiently negatived by the following allegations:That the injury was caused without any fault or negligence on plaintiff's part, that plaintiff had no notice or knowledge of the excavation and was unable to see it, on account of the darkness of the night, and that no warning signals were displayed.1 In Kansas one claiming

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58 Toledo &c. R. Co. v. Brannagan, 75 Ind. 490; Huntington v. Breen, 77 Ind. 29.

50 Randall v. Hoquiam, 30 Wash. 435; s. c. 70 Pac. Rep. 1111.

60 Elwood V. Laughlin, 29 Ind. App. 667; s. c. 65 N. E. Rep. 18; Snook v. Anaconda, 26 Mont. 128; s. c. 66 Pac. Rep. 756.

61 Anderson v. Fleming, 160 Ind. 597; s. c. 67 N. E. Rep. 443. Α complaint, in an action against a city for injuries sustained in a fall

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