in which plaintiff was riding. The complaint in an action for injuries caused by a defective turnpike need not state that plaintiff had paid toll before using the road, the allegation that he was lawfully using the road sufficiently covering the fact of payment of toll. Under an allegation that the plaintiff was injured on a public road there may be a recovery, though the proof shows that the injuries were received upon a turnpike road or highway. § 7588. Negligence of Street Railroad Companies.—An allegation that the alleged injuries were suffered as the proximate consequence of the negligence of defendant through its employés in the management and control of its cars is a sufficient allegation of negligence, and dispenses with the necessity of setting out the particulars of the negligent act. A general averment of negligence is sufficient to include proof of the injudicious sounding of the gong, and negligence in this regard need not be charged specially. But a specific allegation 8 9 Rumsey v. Nelson, 58 Vt. 590; loose dirt, which settled, leaving a s. c. 2 N. E. Rep. 63. Evans v. New Brunswick &c. Tpk. Co., 59 N. J. L. 3; s. c. 34 Atl. Rep. 985. 7 Mills v. Wilmington City R. Co., 1 Marv. (Del.) 269; s. c. 40 Atl. Rep. 1114. Birmingham R. &c. Co. v. Baker, 132 Ala. 507; S. C. 31 South. Rep. 618. To the same effect, see also, Breese v. Trenton Horse R. Co., 52 N. J. L. 250; s. c. 19 Atl. Rep. 204; 41 Am. & Eng. R. Cas. 230; Russell v. Huntsville R. &c. Co., 137 Ala. 627; s. c. 34 South. Rep. 855. Negligence of a street-railway company is sufficiently alleged to withstand a special demurrer in a declaration averring that its servants so carelessly and improperly drove and managed a train of cars operated by an endless cable, that the motor and train ran into plaintiff's carriage with great force and violence, crushing and destroying the same and rendering it of no value, without specifying more particularly the misconduct of the servants: Chicago City R. Co. v. Jennings, 157 Ill. 274; s. c. 41 N. E. Rep. 629; aff'g s. c. 57 Ill. App. 376. A complaint alleging, in substance, that defendant street railway company, in replacing a broken rail, performed the work so negligently as to leave the street in a dangerous and unsafe condition, owing to the use of dangerous hole, so as to permit vehicles to drop into said hole, and that plaintiff, while driving along the street, in the exercise of due care, drove into the hole and was injured, and that the accident occurred wholly by reason of the negligence of defendant, etc., was not objectionable as failing to show negligence: Citizens' St. R. Co. v. Marvil, 161 Ind. 506; s. c. 67 N. E. Rep. 921. A petition which alleges that plaintiff was a driver of a beer wagon, that he was run into by a street car of defendant street railway company, that he stopped to listen before crossing the track, that he had reason to believe that the approaching car was travelling at the ordinary rate of speed, and that he would have ample time to cross the track, but that it was operated at an exceedingly high rate of speed, and that it was gross negligence so to operate it, and that the motorman made no effort to avoid the collision, which might have been avoided, and that the collision was due directly to the fault of the defendant company, whereby plaintiff was seriously injured, states a cause of action: Welty v. St. Charles St. R. Co., 109 La. 733; s. c. 33 South. Rep. 750. 'Benjamin v. Holyoke St. R. Co., 160 Mass. 2; s. c. 35 N. E. Rep. 95. of a particular act of negligence of defendant, which act is susceptible of direct and positive proof, will exclude any idea on the part of the pleader to rely on general negligence, and will limit him to proof of the specific negligence averred.10 Where the rate of speed is set out in the complaint the pleader should allege that such speed is unlawful or improper.11 It is not improper to charge in the same count negligence in law as to the rate of speed by exceeding the limit prescribed by ordinance, and negligence in fact by reason of the circumstances and conditions existing and apparent at the time in question, and proof of either will sustain a finding for plaintiff on the issue of negligence.12 Likewise, he may join in the same count a cause of action. for negligence arising from a breach of the defendant's common-law duty to use due care, and negligence arising from defendant's breach of an ordinance requiring a vigilant lookout to be maintained.18 A breach of the duty to give notice of the car's approach to crossings by signal is sufficiently alleged by an averment that the car was run at an excessive rate of speed and that no care or diligence was exercised by defendant. Where the action against a street-railroad company is by one not an employé, he is not required to state the name of the motorman whose negligence is alleged to have caused the injury.15 One basing his right to a recovery on the ground that steam power to propel a street-car was used instead of the ordinary methods must call in question the right of the defendant to use such power or he cannot insist upon it at the trial.16 14 10 Bartley v. Metropolitan St. R. Co., 148 Mo. 124. "Lydecker v. St. Paul City R. Co., 61 Minn. 414; s. c. 63 N. W. Rep. 1027. Quincy Horse &c. Co. v. Gnuse, 38 Ill. App. 212. In an action against a street railway company, the petition alleged that defendant negligently ran its car at a speed of 18 to 20 miles an hour, and in excess of the speed permitted by an ordinance, which was duly set out; that it negligently omitted to stop its car or give warning, and "by reason of said negligence of the defendant" plaintiff was injured, etc. It was held that recovery could be based either on the company's negligence in failing to stop the car or in running it at an excessive rate of speed: San Antonio Traction Co. v. Upson, 31 Tex. Civ. App. 50; s. c. 71 S. W. Rep. 565. 13 Meyers v. St. Louis Transit Co., 99 Mo. App. 363; s. c. 73 S. W. Rep. 379. 14 Citizens' Street R. Co. v. Albright, 14 Ind. App. 433; s. c. 42 N. E. Rep. 238, 1028. If injury to a child results from failure of those in charge of an electric car to sound a bell or give other warning of the approach of the car to a crossing, or to keep a proper lookout for persons at that point, the company is liable, and it is immaterial that the petition does not allege negligence of such employés after becoming aware, or after they ought to have known, of the child's danger: Koenig v. Union Depot R. Co., 173 Mo. 698; s. c. 73 S. W. Rep. 637. 15 Birmingham R. &c. Co. v. City Stable Co., 119 Ala. 615; s. c. 24 South. Rep. 558. 16 Springfield City R. Co. v. DeCamp, 11 Ill. App. 475. § 7589. Injury to Child on Track of Street Railroad.-The negligence of a motorman in running over a child on the track, has been held sufficiently alleged by an averment that while the child was in plain view, so that he could have been seen by such motorman if he had been careful, and the injury to him avoided, he was, by the carelessness of the motorman, run over and killed; and the fact that the motorman had his back turned to the front of the car, which was the cause of his not seeing the child, need not be alleged.17 § 7590. Injuries by Animals.-One suing for injuries inflicted by a vicious dog must ordinarily aver and prove that the owner had knowledge of his vicious propensities.18 This knowledge will be sufficiently averred in a petition which alleges that the defendant harbored and kept the dog "willfully, unlawfully, and maliciously," with full knowledge of his ferocious and vicious habits and practices, and made no effort to restrain him.19 Where the owner's knowledge of a vicious character is sufficiently alleged, it is unnecessary to go further and allege that the owner allowed the dog to run at large, as the presumption from the attack is that the dog was not securely kept.20 An allegation that defendant had knowledge of the dangerous character of a cow which inflicted personal injuries sued for is unnecessary, where the complaint alleges that the injuries were inflicted while defendant was negligently permitting the cow to trespass upon the plaintiff's premises.21 In a case where a horse escaped into defendant's lot on account of his alleged negligence in failing to keep up his fence, and was there gored by defendant's bull, it has been held that the plaintiff need not allege defendant's knowledge of the bull's viciousness.22 A declaration for the recovery of damages for personal injuries caused by plaintiff being gored by a bull, which alleges that defendant kept the bull, "well knowing that the said bull was used and accustomed to attack, gore, wound, and injure mankind," is sufficient without stating the place of keeping, or that plaintiff was free from contributory negligence.23 § 7591. Failure of Vessel to Give Danger Signals must be Pleaded. -The fault of a tug in failing to give a danger signal and to stop 17 Austin &c. R. Co. v. Cullen (Tex. Civ. App.), 30 S. W. Rep. 578; denying rehearing of s. c. 29 S. W. Rep. 256. 18 Murphy v. Preston, 5 Mackey (D. C.) 514; s. c. 9 Cent. Rep. 146. 15 Cameron v. Bryan, 89 Iowa 214; s. c. 56 N. W. Rep. 434. 20 Woodbridge v. Marks, 5 App. Div. (N. Y.) 604; s. c. 40 N. Y. Supp. 728; aff'g s. c. 14 Misc. (N. Y.) 388; 71 N. Y. St. Rep. 417; 36 N. Y. · Supp. 81. 21 Mosier v. Beale, 43 Fed. Rep. 358. Burke v. Daley, 32 Ill. App. 326. 23 Brooks v. Taylor, 65 Mich. 208; s. c. 8 West. Rep. 188. upon getting no reply to her whistle, or in failing to wait for an approaching steamer to pass in a narrow channel, is not available unless pleaded.24 § 7592. Malpractice of Physician.-The complaint against a physician for negligent treatment should allege specifically wherein the negligence consisted.25 A complaint in an action against a surgeon for malpractice has been held sufficient which alleged that the defendant undertook as a surgeon to examine and treat plaintiff's leg, and examined it in a negligent and unskillful manner and failed to ascertain that it was broken and treated it as though it were not broken, by reason of which the plaintiff suffered great pain and annoyance and has been put to great expense and is still disabled and prevented from attending to business. 26 A recovery for abandonment of treatment by a physician was sustained under a declaration charging that he "carelessly, negligently, and unskillfully conducted himself" in the treatment, and that the injury resulted from his "careless, negligent, improper, and unskillful attention."27 § 7593. Malpractice of Attorney.-A declaration in a suit against a solicitor for negligence in conducting a suit need not state that he was retained for reward, but an allegation that he was retained as, a solicitor is sufficient.28 A declaration in an action against a solicitor for negligence in conducting a suit sufficiently states by intendment the court in which the suit was brought, and that defendant was a solicitor of such court, by averring that he was retained as solicitor to conduct a suit in equity.29 § 7594. Dangerous Agencies-Gas Explosions.-The complaint in an action against a gas company for injuries caused by the explosion of gas must show that the negligence of the gas company was the cause of the explosion. There is an example of a complaint defective in this respect which charged the gas company with negligence in failing to cut off the supply of gas from a building in which there was a defective pipe, and which denied that plaintiff was guilty of contributory negligence, but which failed to go farther and show that the negligence of the gas company was the efficient cause of the injury from the ex 24 Towboat No. 1, 74 Fed. Rep. 906; s. c. 33 U. S. App. 531; 21 C. C. A. 169. Hawley v. Williams, 90 Ind. 160. See also, Morrill v. Tegarden, 19 Neb. 534. 26 Crowty v. Stewart, 95 Wis. 490; s. c. 70 N. W. Rep. 558. 27 Lawson v. Conaway, 37 W. Va. 159; s. c. 18 L. R. A. 627; 16 S. E. Rep. 564. 25 Clark v. Baird, 29 N. B. 620. 29 Clark v. Baird, 29 N, B. 620. plosion; as the explosion would have been impossible without some agency acting upon the leaking gas, which agency should have been averred. The complaint should charge the gas company with knowledge of the existence of a leak the ignition of which caused an explosion. It has, however, been held that a complaint which alleged that the pipes in front of a building were weak and insufficient and inferior in quality or had become rusty and rotten and were incapable of controlling and containing gas, and that, with knowledge of such condition, the company used them to convey gas, which escaped and accumulated under the building in which it was charged that fire was used for illuminating and other purposes constantly, was not demurrable, though perhaps subject to a motion to make more specific.31 §7595. Injury by Runaway Horse at Race.-A declaration does not sufficiently allege negligence of the person conducting a public exhibition of horse-racing by stating an invitation to the public, and that a spectator, while in the place set apart for such persons and without fault on his part, was struck and injured by a runaway horse, without further allegations as to the place of the injury or defendant's control over the immediate cause of it.32 § 7596. Injury to Vessel by Failure to Open a Drawbridge.—A declaration against a railroad company for injury to a vessel, caused by its negligent refusal to open a drawbridge operated by it, should aver that it was its duty to open the draw at the time in question, where the bridge was required to be closed part of the time.3 33 § 7597. Sale of Dangerous Drug to Minor.-A declaration for the death of plaintiff's intestate from a sale of chloroform to him, stating that he was a minor of tender years, employed as a clerk in a grocery store, and earned a reasonable and substantial compensation, sufficiently shows that he was of years of discretion and capable of contributory negligence, so as to make the declaration insufficient in failing to allege his inexperience, peculiar character or disposition, or ignorance of the use of the drug.34 30 McGahan v. Indianapois Natural Gas Co., 140 Ind. 335; s. c. 37 N. E. Rep. 601; 29 L. R. A. 355. 31 Alexandria Min. &c. Co. v. Irish, 16 Ind. App. 534; s. c. 44 N. E. Rep. 680. 32 Hart v. Washington Park Club, 157 Ill. 9; s. c. 29 L. R. A. 492; 48 Am. St. Rep. 298; 41 N. E. Rep. 620. 33 Jennings v. Fitchburg R. Co., 146 Mass. 621; s. c. 16 N. E. Rep. 568; 6 N. Eng. Rep. 269. 34 Meyer v. King, 72 Miss. 1; s. c. 16 South. Rep. 245. |