damages for injuries due to a defective bridge, recovery in such cases from the town in which the bridge is located being allowed by statute, must allege, and, if the allegation be controverted, prove, freedom from contributory negligence; but where the answer of the defendant sets up specific acts of negligence on the part of the plaintiff, the burden of proving such acts will be cast upon the defendant.62

$7566. Plaintiff's Ignorance of Defect Need Not be Averred.-A petition against a city for personal injuries sustained at a street crossing alleged to have been defective, need not affirmatively aver that plaintiff had no notice of the defective condition of the crossing prior to her injury, that being matter of defense.**

§ 7567. Unnecessary Allegations in Complaint.—If the complaint shows a negligent defect causing the injury and that the city had notice of it a month previous, the complaint will not be considered defective because it fails to allege that the city was negligent in not placing signals to warn travellers of the danger.65 A complaint in a qui tam action against a town for a penalty for failure to erect guide posts, alleging neglect of the town to maintain a guide post at a certain place, was sufficient without alleging neglect of the selectmen to maintain such guide posts, the reason being that the town was made liable by the statute, and "the town could not be guilty of neglect if the selectmen had erected a sufficient post."

§ 7568. Allegation of Service of Claim or Notice of Intent to Sue. -The fact of the filing of the claim for damages or a notice of intention to commence an action for personal injuries against a municipal corporation must be alleged in the complaint, where the statute makes the filing of such notice a condition precedent to the maintenance of the action. In such a case, a complaint will be held not

on a plank used as a crosswalk, alleged that the plank had been used for some time, and that the step from the end thereof to the sidewalk had been about two inches, but that the same had been changed since the plaintiff last passed over it, so that at the time of the accident it was elevated fourteen inches above the level of the sidewalk. It was further alleged that the accident occurred in the darkness, and that the plaintiff was in the exercise of due care. It was held that the complaint was not demurrable as showing that the plaintiff was guilty of contributory negligence in

attempting to pass over a known dangerous place, or in showing conditions whereby the plaintiff ought to have known that the same was dangerous: Indianapolis v. Mitchell, 27 Ind. App. 589; s. c. 61 N. E. Rep. 947.

62 Falls Twp. v. Stewart, 3 Kan. App. 403; s. c. 42 Pac. Rep. 926.

64 Lafayette v. Weaver, 92 Ind. 477; Denison v. Sanford (Tex. Civ. App.), 21 S. W. Rep. 784.

57

65 New Albany v. McCulloch, 127 Ind. 500; s. c. 26 N. E. Rep. 1074. 66 Bronson V. Washington, Conn. 346; s. c. 18 Atl. Rep. 264. Foley v. New York, 1 App. Div.

68

to state a cause of action where it appears from the face of the complaint that the notice was not filed within the statutory time. Where it is averred that the complaint was filed within a specified number of days after the happening of the accident, it has been held not necessary to go further and specify the particular day on which the notice was given.69

§ 7569. Complaint in Case of Appeal from Disallowance of Claim by City. Where the person injured files his claim with the proper city officer in compliance with the charter or statute, and, the claim being disallowed, appeals to the Circuit Court as the statute allows, and his statement of claim filed with the city officer has all the essential elements of the complaint in the Circuit Court, no other or further formal complaint need be filed in that court.70 Under a charter making a disallowance of a claim by the common council of the city "final and conclusive and a perpetual bar to any action in any court founded on such claim," except that the claim may be appealed within a stated time to the Circuit Court,-it has been held that, where the claim is disallowed by the common council, or when the common council has held the claim without action for such a length of time as to work a disallowance, and the plaintiff appeals to the Circuit Court, then his complaint filed therein must state facts showing that he has the right, or has not waived the right, to maintain an action in that forum." It will be recalled that the making of the claim by notice to some officer of the municipality, in the manner prescribed by the statute, is generally regarded as a condition precedent to the bringing of the suit. From this it easily follows that if the claim has not been made in compliance with the statute before suit is brought, it cannot be amended by an order of court so as to support the action.72

§ 7570. Illustrations of Sufficient Petitions in Highway Cases.— The following allegations in actions for personal injuries received in consequence of defects in highways have been held to state a good cause of action:-In an action against a city for personal injuries from falling over a guy wire stretched from an electric pole to a decayed

(N. Y.) 586; s. c. 73 N. Y. St. Rep. 187; 37 N. Y. Supp. 465; Kennedy v. New York, 34 App. Div. (N. Y.) 311; s. c. 54 N. Y. Supp. 261.

es Norton v. New York, 16 Misc. (N. Y.) 303; s. c. 38 N. Y. Supp. 90. Smiley v. Merrill Plantation, 84 Me. 322; s. c. 24 Atl. Rep. 872.

70 Cantwell v. Appleton, 71 Wis. 463; s. c. 37 N. W. Rep. 813. "Morrison v. Eau Claire, 115 Wis.

538; s. c. 92 N. W. Rep. 280; Watson v. Appleton, 62 Wis. 267, 271; citing, for analogy, Benware v. Pine Valley, 53 Wis. 527; Chicago &c. R. Co. v. Langdale, 55 Wis. 116; Weisenberg v. Winneconne, 56 Wis. 667; Wentworth v. Summit, 60 Wis. 281; Wright v. Merrimach, 52 Wis. 466.

72 Vol. V, § 6341. See also, Leonard v. Barth, 61 N. H. 67.

tree, averments that the wire was attached to the decayed tree with the knowledge of the city; that, by the exercise of reasonable diligence, the city might have known of the continuance of such unsafe attachment up to the time of the accident; that, some nine months after the attachment, the tree fell, bringing the wire near the sidewalk; and that plaintiff fell over it without any negligence on his part;73 allegations that plaintiff, while driving along a street of the defendant city, came into collision with an iron water plug projecting more than a foot from the ground, and his vehicle was thereby overturned, causing him serious injury; that there was no light or signal at or near the water plug to disclose its situation; that it was a dangerous obstruction in the street, well known to defendant, which permitted it to remain without taking any care for the protection of persons driving along the street; an allegation of a complaint in an action for personal injuries from an alleged defective bridge, that, by reason entirely of the insufficiency, want of repair, and defects aforesaid of and in said bridge, plaintiff's team fell from the bridge, the conclusion being that this sufficiently alleges the defects in the bridge to be the proximate cause of the injury;" allegations that, as the plaintiff was passing upon a given street in a village, his cutter struck, without his fault or negligence, a large stone in said street, and was thereby overturned and broken and the plaintiff severely injured; that such stone was an illegal obstruction in the highway, and was dangerous and liable to cause injury to persons passing upon said highway; that the street commissioners well knew that such stone was within the street and was an illegal and dangerous obstruction thereto; and that the plaintiff's injuries were caused by the negligence of said commissioners and board of trustees, the conclusion being that this states a cause of action against the trustees, in the absence of a motion to have it made more definite and certain;76 allegations that the defendant county negligently failed to place any guards or railings at the sides of a certain bridge, and negligently permitted it to remain in such condition, and that plaintiff, while passing over it, was injured by his horse becoming frightened at a hog under the bridge, and backing off where there was no railing or other protection, the conclusion being that this sufficiently shows that the injury was caused by the absence of any railings or guards; an allegation that plaintiff was injured while

73 Lafayette v. Ashby, 8 Ind. App. 214; s. c. 34 N. E. Rep. 238.

Petersburg v. Todd (Va.), 24

S. E. Rep. 232 (no off. rep.).

76 Dougherty v. Horseheads, 73 Hun (N. Y.) 443; s. c. 56 N. Y. St. Rep. 43; 26 N. Y. Supp. 642.

"Boone Co. v. Mutchler, 137 Ind.

Kelly v. Darlington, 86 Wis. 140; s. c. 36 N. E. Rep. 534.

432; s. c. 57 N. W. Rep. 51.

propelling a traction engine on which he was riding along the travelled track of a highway, by the ground giving way at a point where there was a "ditch or gully four or five feet deep close up to, and partly under the travelled track, obscured from view by the presence of a rank growth of weeds," the conclusion being that this sufficiently shows that the highway was defective and is not subject to the objection that it shows that the highway was sufficient for ordinary travel.78 A complaint in an action against a city to recover for an injury in consequence of a defective sidewalk, which alleged that the sidewalk had been negligently left out of repair and dangerous for two months, of which the city had notice; that when walked upon it tipped, because its supports had been washed away, in consequence of which the plaintiff, in passing, without fault and being ignorant of the danger, slipped and fell, sustaining injuries, etc., was held to state a good cause of action.79

§7571. Illustrations of Insufficient Petitions. It is scarcely necessary to say that where the declaration, complaint or petition, by whatever name called, fails to show negligence on the part of the defendant, or, averring negligence, fails to show that such negligence was a proximate or efficient cause of the injury, it will fail to state a cause of action. On this ground, the following petition was held not to state a cause of action: "Martha Poe, plaintiff, complains of the town of Rushville, defendant, and says that, prior to the 21st day of November, 1879, the defendant was engaged in grading Jennings Street in said town, and, while so engaged, caused a hole to be dug in said street, ten inches deep and twelve inches in diameter; that plaintiff, while walking along said street, stepped into said hole and was thrown violently to the ground, thereby bruising her face and limbs and breaking her wrist; that said hole was, through the negligence of the defendant, permitted to remain in said street for ten days, and was left uncovered and unguarded, and that said injuries were sus

McCullough, 127 Ind. 500. See also, Lafayette v. Weaver, 92 Ind. 477. For a declaration stating a cause of action where the plaintiff, driving along a street, upon his mule becoming frightened jumped from his buggy and fell into a sewer opening, -see Bryan v. Macon, 91 Ga. 530; s. c. 18 S. E. Rep. 351. For a good petition in the case of an injury received through the falling of the bent of a bridge,-see Lebanon v. McCoy, 12 Ind. App. 500; s. c. 40 N. E. Rep. 700.

tained without fault or negligence of the plaintiff," "The negligence," said Woods, C. J., "is charged to have consisted, not in the opening of the hole, but in permitting it to remain for ten days; and perhaps, by fair, though an over-liberal construction, the averment may be said to mean that the 'excavation was left uncovered and unguarded' during the time mentioned; but whether the plaintiff was hurt during the time is not alleged, and cannot be fairly inferred. The plaintiff may have been injured on the day the excavation was made, and before it could be said the town had been guilty of any negligence; the street was in process of being graveled and may not have been open for public use; or, at the time the excavation was made, proper safeguards may have been placed upon or about it, and those afterward removed without the negligence of the town, and the injury have befallen the plaintiff before the town had, or under the circumstances ought to have had, notice of the defect, and of the consequent danger." In an action against a town for injuries suffered by reason of a defective highway, the complaint, after averring injuries to plaintiff from such defective highway, alleged, as "another and further cause of action," that, "by reason of said injury so received, as herein set forth," plaintiff was wholly unable to carry on a certain manufacturing business in which he had previously been engaged, and that he lost, in consequence, a large amount of trade, to his damage, etc. This count, not otherwise averring any defect in the highway, or that the injury was caused thereby, or that the statutory notice of the injury had been served upon the town,—was held insufficient on demurrer.81

§ 7572. Variance between Pleading and Proof-Illustrations.In the following instances the variance between the allegation and the proof was held material and fatal:-Where the declaration, which confines plaintiff's cause of action to injuries received from falling into an excavation, is not supported by evidence that the improvement had been completed, and the proof shows that plaintiff had fallen down a flight of steps in the sidewalk;82 where the defect in the sidewalk was located in the pleading as not less than thirty-three nor more than fifty

So Rushville v. Poe, 85 Ind. 83. Such decisions are discreditable to the judges who render them. The practice of sustaining demurrers after trial and judgment is a reproach to the administration of justice, unless the petition is wholly barren of a cause of action. The policy of the statute of jecfails is that petitions should be read in the light of the evidence at the

trial, and if it appears that the defects in the allegation were supplied by the evidence, and that the defendant suffered no prejudice from the defects in the plaintiff's pleading, the demurrer thereto should not be sustained.

S1 Susenguth v. Rantoul, 48 Wis. 334.

82 Kane v. Joliet, 103 Ill. App. 195.