Слике страница
PDF
ePub

the plaintiff should recover. Held, error, the question being for the jury, and being, not whether a rope was not as safe as a chain, but whether it was reasonably safe: Tabler v. R. R. Co., 93 Mo. 79. The driver of a wagon sued for injuries sustained from a collision with a horse-car. The evidence as to the rate of speed of the car was conflicting. Plaintiff's statements were in some respects contradictory. Held, that the case was for the jury, and that it would have been error to nonsuit: North Hudson County R. R. Co. v. Isley, 49 N. J. L. 468.

§ 1216.

Pleading.

Among the rules of pleading which remain unchanged by the introduction of the code, and which must, from their nature, appertain to any system of pleading, are the requirements that pleadings must be certain, and that the evidence must agree with the pleadings. The plaintiff may not state one act of negligence in his declaration, and recover on proof of another act. A declaration for negligence is not supported by proof of negligent acts not specifically set out. It is sufficient to allege that a duty existed upon the part of the defendant, and that he violated such duty; but the facts must be stated, showing the legal liability. Unless the duty results, in all cases, from the stated facts, the declaration will be bad. Special damage must be stated with great particularity, in order that the defendant may be enabled to meet the charge if it be false; and if it be not so stated, it cannot be given in evidence. But unless it is sought to recover special damages, it is not necessary, in an action for personal injuries, that the injuries received by the plaintiff should be particularly described in the declaration. It is enough if it is shown that the plaintiff received a bodily injury." Nor need there be a

12 Thompson on Negligence, 1247. 2 Chicago etc. R. R. Co. v. Bell, 112 Ill. 360.

3 Wabash etc. R. R. Co. v. Coble, 113 Ill. 115.

Toledo etc. R. R. Co. v. Weaver, 34 Ind. 298; Pittsburgh etc. R. R. Co. v. Troxell, 57 Ind. 246; Brown v. Mallett, 5 Com. B. 599; 17 L. J. Com. P.

227; Seymour v. Maddox, 16 Q. B. 326; Buffalo v. Holloway, 7 N. Y. 493; 57 Am. Dec. 550; Taylor v. Ins. Co., 2 Bosw. 106.

51 Chitty's Pl. 414; Baldwin v. R. R. Co., 4 Gray, 333:

6 Corey v. Bath, 35 N. H. 530; Brown v. Byroads, 47 Ind. 435.

[graphic]

special averment of prospective damages, except where a father is the plaintiff, and is suing for a prospective loss of service of the son. Where both actual and exemplary damages for causing death are sought, the allegations should be in the nature of two distinct counts on different causes of action.2 In relying upon statutory enactments either for a cause of action or in defense, general statutes must be pleaded in general terms, while special acts should be stated by their title and date. The fact that the statute prescribes the signals to be given by a locomotive at a highway crossing does not require the plaintiff in an action founded on negligence to allege that these signals were not given, in order that he may show that they were not. Negligence on the part of the defendant is the gist of the action, and must be charged in the plaintiff's petition. It is not, however, absolutely necessary that it should be averred in terms, if such facts are stated as will raise a presumption of negligence. It is not necessary to set out the facts constituting the negligence complained of. An allegation specifying the act constituting the injury, and alleging that it was negligently and carelessly done, is sufficient." But the act the negligent doing of which caused the injury must be stated. A bare allegation that the party was negligent is too genRanson v. Labranche, 16 La. Ann.

5

1 Gilligan v. R. R. Co.,1 E. D. Smith, 461.

Galveston etc. R. R. Co. v. LeGierse, 51 Tex. 189.

3 Shartle v. Minneapolis, 17 Minn. 308; Goshen etc. Co. v. Sears, 7 Conn. 86.

Kaminitsky v. Northeastern R. R. Co., 25 S. Č. 53.

5 Wright v. R. R. Co., 18 Ind. 168; Terre Haute etc. R. R. Co. v. Smith, 19 Ind. 42; Toledo etc. R. R. Co. v. Weaver, 34 Ind. 298; Jeffersonville etc. R. R. Co. v. Martin, 10 Ind. 416; Indianapolis etc. R. R. Co. v. Williams, 15 Ind. 486; Toledo etc. R. R. Co. v. Eidson, 51 Ind. 67; Quick v. R. R, Co., 31 Mo. 399; Brown v. R. R. Co., 33 Mo. 309; Dyer v. R. R. Co., 34 Mo. 127;

122.

Quick v. R. R. Co., 31 Mo. 399;
Brown v. R.R. Co., 33 Mo. 309; Dyer v.
R. R. Co., 34 Mo. 127; Burdick v.
Worrall, 4 Barb. 596.

7 St. Louis etc. R. R. Co. v. Mathias,
50 Ind. 66; Indianapolis etc. R. R. Co.
v. Keely, 23 Ind. 133; Ohio etc. R. R.
Co. v. Selby, 47 Ind. 471; 17 Am. Rep.
719; Pittsburgh etc. R. R. Co. v. Nel-
son, 51 Ind. 150; Kessler v. Leeds, 51
Ind. 212; Clark v. R. R. Co., 15 Fed.
Rep. 588; Rowland v. Murphy, 66 Tex.
534; Otto v. R. R. Co., 12 Mo. App.
168; Mack v. R. R. Co., 77 Mo. 232;
Schneider v. R. R. Co., 75 Mo. 295;
Ohio etc. R. R. Co. v. Davis, 23 Ind.
553; 85 Am. Dec. 477.

eral to support any evidence.' The full particulars of the derailment of defendant's train on which plaintiff founds his action for personal injuries need not be set forth in the complaint. In an action against a street cable railroad company for damages occasioned by the excessive and improper width of the grip-slot at a particular point, it is not necessary for the plaintiff to plead or prove the defendant's knowledge of the defect.3

The plaintiff need not, to entitle him to double damages under a statute, claim them in his petition.1 Facts, and not conclusions of law, must be stated. It does not follow, however, that because negligence is a mixed question of law and fact, a general allegation of negligence is pleading a legal conclusion only. The words "not securely fenced, as required by law," allege a fact, and not a conclusion of law." Matters strictly pertaining to the remedy may be shown in evidence without being pleaded." The complaint need not negative contributory negligence unless the other averments suggest the inference that plaintiff was guilty. The phrase "without fault" sufficiently negatives contributory negligence on the part of plaintiff." But an allegation that plaintiff "attempted" to do a certain thing carefully is not equivalent to the necessary allegation that he was in the exercise of due care." In an action for an injury to a child, the complaint need not aver that the child was not guilty of negligence; it is sufficient if it is averred that the injury was inflicted without

[blocks in formation]

6 Grinde v. R. R. Co., 42 Iowa, 376.

7 Jeffersonville etc. R. R. Co. v. Chenoweth, 30 Ind. 366; Indianapolis etc. R. R. Co. v. Adkins, 23 Ind. 340. 8 Kent v. Lincoln, 34 Wis. 357.

9 Street R. R. Co. v. Nolthenius, 40 Ohio St. 376; Louisville etc. R. R. Co. v. Wolfe, 80 Ky. 82.

10 Rogers v. Överton, 87 Ind. 410. Thompson v. R. R. Co., 57 Mich.

300.

[graphic]

the negligence of the parents with whom the child resided.1 A defense grounded upon contributory negligence of the plaintiff, or the fact that the injury resulted from inevitable accident, must be pleaded specially.2 Evidence showing matter of excuse is not admissible under the plea of "not guilty."

§ 1217. Measure of Damage-Loss of Time-Incapacity to Labor-Expenses.-If the plaintiff is, in consequence of the injury, disabled from attending to his ordinary business and occupation, he is entitled to be compensated in damages for the time so lost." The amount of the damages must, of course, depend upon the calling in which the plaintiff was engaged, the amount of money which he was able to earn, the steadiness, regularity, etc., of his employment, and evidence on these points is relevant.5 It is held that a jury cannot be said to take a reasonable view of the case unless they consider and take into account all the heads of damage in respect of which a plaintiff complaining of a personal injury is entitled to compensation. These are, the bodily injury sustained; the pain undergone; the effects on the health of the sufferer, according to its degree and its probable duration, as likely to be temporary or permanent; the

1 Pittsburg etc. R. R. Co. v. Vining, 27 Ind. 513; 92 Am. Dec. 269.

2 Knapp v. Salsbury, 2 Camp. 500; Grant v. Baker, 12 Or. 329. Contra, Gough v. Bryan, 2 Mees. & W. 770.

3 Hall v. Fearnley, 3 Q. B. 919. Contra, Indiana etc. R. R. Co. v. Rutherford, 29 Ind. 82; 92 Am. Dec. 337.

Rockwell v. R. R. Co., 64 Barb. 438; 53 N. Y. 625; Masterton v. Mount Vernon, 58 N. Y. 391; Goodno v. Oshkosh, 28 Wis. 300; Lombard v. Chicago, 4 Biss. 460; Indianapolis v. Gaston, 58 Ind. 225; Pennsylvania etc. Canal Co. v. Graham, 63 Pa. St. 290; Chicago v. O'Brennan, 65 Ill. 160; Morris v. R. R. Co., 45 Iowa, 29; Chicago v. Jones, 66 Ill. 349; Chicago etc. R. R. Co. v. Wilson, 63 IlI. 168; Peoria Bridge Ass'n v. Loomis, 20 Ill.

236; 71 Am. Dec. 263; Grant v. Brook-
lyn, 41 Barb. 381; Ripon v. Bittel, 30
Wis. 614; Sheehan v. Edgar, 58 N. Y.
631; Beardsley v. Swann, 4 McLean,
333; Stafford v. Oskaloosa, 64 Iowa,
251. A teacher of languages may
show, on the question of damages, the
number of his pupils and the amount
of his earnings in the years prior to
the accident: Simonin v. R. R. Co., 36
Hun, 214.

Nebraska City v. Campbell, 2
Black, 590; Rockwell v. R. R. Co., 64
Barb. 438; 53 N. Y. 625; Masterton
v. Mount Vernon, 58 N. Y. 391; Kes-
sel v. Butler, 53 N. Y. 612; Hanover
R. R. Co. v. Coyle, 55 Pa. St. 396;
Balt. etc. R. R. Co. v. Boteler, 38
Md. 568.

expenses incidental to attempts to effect a cure, or to lessen the amount of injury; the pecuniary loss sustained through inability to attend to a profession or business, which, again, may be of a temporary character, or may be such as to incapacitate the party for the remainder of his life. He is entitled to damages for his loss of time, without regard to the fact that his employers made no deduction from his salary. A married woman cannot recover for loss of time unless she was doing business on her own account.3 And one cannot recover the cost of board during the time he was incapacitated; nor for his own loss of time and capacity to labor, and in addition what he has to pay another to supply that loss of labor. But where the plaintiff has been permanently disabled from pursuing his usual avocation, he is entitled to recover compensation for the injury received. Evidence tending to show permanent injury as affecting the amount of damages is properly submitted to the jury. In the

1 Phillips v. R. R. Co., L. R. 5 C. P. D. 280; Peoria Bridge Co. v. Loomis, 20 Ill. 235; 71 Am. Dec. 263; Illinois Cent. R. R. Co. v. Read, 37 Ill. 484; 87 Am. Dec. 260; City of Chicago v. Martin, 49 Ill. 241; 95 Am. Dec. 590; Pennsylvania Co. v. Books, 57 Pa. St. 339; 98 Am. Dec. 229; Stafford v. Oskaloosa, 64 Iowa, 251; Secord v. R. R. Co., 18 Fed. Rep. 221; 5 McCrary, 515; Mackoy v. R. R. Co., 18 Fed. Rep. 236. The plaintiff may show how much he has earned annually for the six or seven years prior thereto: Ehrgott v. New York, 96 N. Y. 264.

2 Missouri etc. R. R. Co. v. Jarrard, 65 Tex. 560.

3 Thomas v. Brooklyn, 58 Iowa, 438. She may testify that, at the time of the accident, she was doing the housework for her husband and eight children: Joliet v. Conway, 119 Ill. 489.

Graeber v. Derwin, 43 Cal. 495. 5 Blackman v. Gardiner Bridge, 75 Me. 214.

George v. Haverhill, 110 Mass. 506; New Jersey Express Co. v. Nichols, 33

N. J. L. 435; 97 Am. Dec. 722; Gale v. R. R. Co., 53 How. Pr. 359; 13 Hun, 1; McLaughlin v. Corry, 77 Pa. St. 109; 18 Am. Rep. 432; Goodno v. Oshkosh, 28 Wis. 600; Hammond v. Mukwa, 40 Wis. 36; Hall v. Fond du Lac, 42 Wis. 274; Wightman v. Providence, 1 Cliff. 524; Indianapolis v. Gaston, 58 Ind. 225; Collins v. Council Bluffs, 32 Iowa, 325; 7 Am. Rep. 200; Belair v. R. R. Co., 43 Iowa, 662; Morris v. R. R. Co., 45 Iowa, 29; Chicago etc. R. R. Co. v. Wilson, 63 Ill. 167; Peoria Bridge Ass'n v. Loomis, 20 Ill: 236; 71 Am. Dec. 263; Chicago v. Elzeman, 71 Ill. 132; Nichols v. Brunswick, 3 Cliff. 81; Lombard v. Chicago, 4 Biss. 460. Where a mechanic is permanently injured by defendant's negligence, the jury may consider the probable expense to him of his future disability, although there is no proof of the amount of his past earnings: Staal v. R. R. Co., 36 Hun, 208.

7 Kerr v. Forgue, 54 Ill. 482; 5 Am. Rep. 146.

« ПретходнаНастави »