.84

feet north of a certain cross street, and the proof located the defect at a distance of five hundred and seventy-five feet north of the cross street;83 where the injuries were alleged to have been caused by tripping upon the stump of a tree, and the evidence showed that the plaintiff tripped upon the curbstone instead, where the complaint alleged negligence in permitting an excavation to remain in the street without guard or light, and the negligence proved was the failure of the city to erect a barrier between a street and an excavation in an adjoining lot.85 The variance was held not material in the following cases:-Where the petition, in an action against a city for injuries, alleged that plaintiff stepped or slipped into a hole in the sidewalk where the boards were loose and not properly nailed, and the evidence showed that, instead of her foot slipping into a hole, the board sank down in the hole, and then her foot slipped;86 where the petition charged defendant with knowledge of a defect in a sidewalk, and the evidence showed that the defect had existed so long that defendant should have known of it;87 where the complaint alleged that, at the place where the injury occurred, the boards from the sidewalk were taken up for a space of from twenty to thirty feet, while the evidence showed that the defect in the walk was but from two to four feet wides where the declaration alleged that the "right knee of plaintiff was then and there dislocated," and she "became sick, lame, disordered, and permanently injured," and the proof was that plaintiff's knee impinged against a protruding nail, causing a jagged wound above the cap, and a swelling of the limb, and varicose veins;89 where the complaint alleges injury by stepping in a hole or cavity in a sidewalk beneath a tipping board or boards which were loose, and the evidence shows that plaintiff's foot struck against the end of a section of a plank walk raised momentarily by another's stepping upon it.9o

90

SECTION

7579. Liability of landlord.

7580. Want of knowledge of danger

by injured person.

7581. Injuries to children.

7582. Places attractive to children.

SECTION

7583. Complaint in action against abutting owner for injuries from defects in sidewalks. 7584. Unguarded excavations.

§ 7577. Action for Negligence or for Nuisance.-Where the facts as pleaded disclose negligence of the defendant in maintaining an unsafe structure on his land whereby an injury is suffered by the plaintiff, an action for negligence will lie, although an action for nuisance could also be maintained.1

§ 7578. Right of Injured Person on Premises.-The complaint should set out facts showing in what capacity or by what right the injured person was on the premises at the time of receiving the injuries complained of; whether as a trespasser, a licensee, or an employé. The plaintiff is not required to aver in set terms that he was on the premises by invitation where this fact is relied upon; all that is required is that he should set out the facts disclosing the invitation.3 An Indiana decision is authority for the doctrine that a complaint for injuries received in a defective building which alleges that defendant invited the public to his building for the purpose of trade is fatally defective unless it also alleges that plaintiff was one of the class invited, and this notwithstanding it contains an averment that the plaintiff was properly and necessarily in the building. The case is an example of strict construction pushed to the furthest frontier and is without support elsewhere. The duty of the defendant to maintain his building in a safe condition need not be made the subject of a special averment. The matter has been held sufficiently covered by an allegation that plaintiff was at the place where the accident occurred on business with and at the invitation of the defendant. In the case of an elevator injury, a declaration is sufficient which alleges an invitation to plaintiff by defendants to enter their building, the duty of defendant to take and use all proper means of precaution, in the use of the elevator on the premises, to prevent per

sons lawfully there from falling into the elevator well, and the neglect of that duty."

7579. Liability of Landlord.-A complaint for personal injuries received by a tenant by the fall of plaster from the ceiling of the leased premises is sufficient which charges the landlord with negligence in general terms without stating that he knew or had reason to know that the ceiling was unsafe or dangerous or that he had agreed to repair it and failed to do so. The complaint in an action against a landlord must connect the alleged negligence with the injuries received and state whether the defect causing the injuries was latent or patent.s

§ 7580. Want of Knowledge of Danger by Injured Person.-Want of knowledge of the dangerous condition of the premises need not be averred in express terms. A complaint stating that the owner permitted a building to collapse, and, in so doing, instantly and without notice to kill deceased while he was rightfully and without negligence therein, sufficiently alleges want of knowledge of deceased of the dangerous condition of the building.

9

§ 7581. Injuries to Children.-In the case of injuries to children of tender years, the pleader, intending to rely on their youth and consequent irresponsibility, does not ground his case on irresponsibility where he alleges generally want of contributory negligence and seeks to excuse the plaintiff therefrom.10 A complaint in an action for the death of a child was held to state a cause of action which alleged ownership and possession in defendant of a certain town lot which had a well thereon, and that through defendant's neglect and carelessness such well was left open, and that the deceased, without fault or negligence on his part, fell into it and was instantly killed.11

$7582. Places Attractive to Children.-The complaint in an action for injuries to children by the fall of lumber piled in a public

6

McKee v. McCardell, 21 R. I. 363; s. c. 43 Atl. Rep. 847. An allegation in a complaint in an action by an employé of a lessee of a building with the use of an elevator, that at the time of the fall of the elevator he was rightfully and lawfully thereon for the purpose of raising and lowering goods of the lessee, is sufficiently specific as to his right to be on the elevator, without setting out what particular goods he was actually raising

or lowering: Ellis v. Waldron, 19 R. I. 369; s. c. 33 Atl. Rep. 869.

'Franz v. Mulligan, 18 Misc. (N. Y.) 411; s. c. 42 N. Y. Supp. 509.

Smith v. Buttner, 90 Cal. 95; s. c. 27 Pac. Rep. 29.

• Patterson v. Jos. Schlitz Brewing Co., 16 S. Dak. 33; s. c. 91 N. W. Rep. 336.

10

Indianapolis &c. R. Co. v. Wilson, 134 Ind. 95; s. c. 33 N. E. Rep. 793.

11 Holt v. Spokane &c. R. Co., 4 Idaho 443; s. c. 35 Pac. Rep. 39.

street, around which lumber they were playing, need not állege that the defendant well knew that the piling of lumber in a street was calculated to attract and entice children to play around it, as that is a matter of common knowledge of which the court will take judicial. notice.12 The fact that private premises were attractive to and did attract children should be set out.13

§ 7583. Complaint in Action against Abutting Owner for Injuries from Defects in Sidewalks.-A complaint for personal injury caused by a defective grating maintained by the defendant in the sidewalk in front of his premises need not allege that defendant constructed the grating in the first instance or derived personal benefit or convenience therefrom.14 The fact that a coal hole was placed in the sidewalk by defendant and that he controlled and used the hole has been held sufficiently averred in a complaint in an action for injuries sustained by falling into the coal hole in the sidewalk which stated that defendant was the owner of the adjacent building, that the coal hole was in front thereof, and that the iron cover thereof had been "so carelessly constructed and fitted upon said coal hole by the defendant" that unless it was securely fastened, it was liable to slip when stepped on, etc.15

§ 7584. Unguarded Excavations.-The complaint in an action for injuries caused by falling into an unguarded excavation need not expressly allege that plaintiff was ignorant of the existence of the excavation if it contains a general averment that he was without fault.16 But a declaration alleging that defendants were engaged in constructing a building "fronting" on a sidewalk "with an open space or area between the front," and that they left such sidewalk without any safeguard, whereby plaintiff unavoidably fell from the sidewalk into the area, was held insufficient to bring the case within the rule requiring that a person digging an excavation so near a highway that one lawfully making use thereof may accidentally fall into the excavation should guard against such an accident, as the pleading fails to show possession or control of such area in the defendant or that it was so near the sidewalk as to be dangerous to passers-by.17

12 Spengler v. Williams, 67 Miss. 1; s. c. 6 South. Rep. 613.

13 Schmidt v. Kansas City Distilling Co., 90 Mo. 284; s. c. 7 West. Rep. 124.

1+ Stevens v. Walpole, 76 Mo. App. 213

15 Gaston v. Bailey, 24 Ind. App. 24; s. c. 53 N. E. Rep. 1021.

16 Ohio &c. R. Co. v. Levy, 134 Ind. 343; s. c. 32 N. E. Rep. 815; 34 N. E. Rep. 20.

17 Thamm v. Lahey, 59 Ill. App. 73.

ARTICLE VI. PLEADINGS IN MISCELLANEOUS CASES OF NEGLIGENCE.

§7587. Injuries on Highways.-In an action for injuries received in a collision caused by the failure of defendant to turn his vehicle to the right of the middle of the travelled part of the road it is not necessary to set forth a particular description of the road.' But an allegation that defendant's horse was badly broken or more or less unmanageable, and that as plaintiff and defendant approached each other, in the highway, "defendant carelessly or negligently drove or permitted his horse to go across the highway and to strike against the mare of the plaintiff," has been held not to show that the action was founded upon a violation of a statute requiring persons driving on a highway when they meet to turn to the right and each give half of the travelled path. In case of injuries sustained in a runaway, caused by objects placed on or near the highway, the complaint should aver that the objects had a natural tendency to frighten road-worthy horses. So, the averment that defendant negligently placed an obstacle in the weeds near the road has been held insufficient to charge him with negligence rendering him liable for an accident due to the fright of a horse at such object, as it may have been placed at so great a distance that a prudent and careful person could not reasonably have expected such a result. Injury caused by a horse breaking away from a hitching post has been held sufficiently pleaded by the statement that plaintiff, without fault, while lawfully driving in the highway, was injured by defendant's horse, which had been so negligently hitched by a servant that it broke away and ran into the wagon

Commonwealth v. Allen, 11 Metc. (Mass.) 403. See also, Snow V. Adams, 1 Cush. (Mass.) 443.

2 Broschart v. Tuttle, 59 Conn. 1; s. c. 21 Atl. Rep. 925; 11 L. R. A. 33.

3

Keeley Brew. Co. v. Parnin, 13 Ind. App. 588; s. c. 41 N. E. Rep. 471.

4 Clark v. Hart, 98 Ky. 31; s. c. 17 Ky. L. Rep. 604; 32 S. W. Rep. 216.