116 N.Y.S. 760 | N.Y. App. Div. | 1909
Lead Opinion
"Upon the trial of this action, after a jury had been impaneled, but before any evidence bad been introduced by -the plaintiff, the court dismissed the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. Upon such a motion not only must the complaint be liberally construed (Code Civ. Proc. § 519), but such construction, so far as matters of form aré concerned,- must be in favor of and not against the pleading. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451; Rochester R. Co. v. Robinson, 133 id. 242; Howe v. Hagan, 110 App. Div. 392; Naylor v. N. Y. C. & H. R. R. R. Co., 119 id. 24.) In the Coatsworth Case (supra) the court said : “Under the more recent authorities pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out the nature bf the pleader’s claims are sufficient if under them he would be entitled to
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Hirschberg, P. J., Rich and Miller, JJ., concurred; Gaynor, J., read for affirmance. ,
Dissenting Opinion
It is trite that there can be no complaint for negligence without an allegation of some negligent fact, i. e., some fact causing the injury, and alleged to be caused by the negligence of the defendant. There is no such allegation in this complaint. It is alleged that the defendant ran a car line “ along Graham avenue ” ; that the: pavement on the said avenue within two feet of the car tracks was being repaired—-by whom is not alleged — and that there were large holes therein “where some of the blocks had been taken out”; that the car on which the plaintiffs wife was a passenger stopped at the corner of the said avenue and another avenue; that she got out, and that while “ taking up said child ”, who had been handed out Of the car by another passenger, “ her foot slipped into one of the holes ” already mentioned, which caused her to fall; that the fact that said pavement was being repaired was known to the defendant ; and that' it failed to give the plaintiff’s wife any notice or warning of the condition thereof. There is no other allegation of fact — this is all. Ho act of the defendant or of any one else is alleged as negligent ; nay, no act at all of the defendant is alleged.
It is said that under these allegations the plaintiff could prove that the repairing was going on and the condition of the street therefrom, that her foot slipped into one of the holes, and that the defendant knew the repairing was going on and the condition ■ of the street and omitted to give the plaintiff warning or notice thereof; and that upon such proof being made “ it would be for the jury to say whether the defendant exercised due care ”. But that is begging the whole question. The jury could not be permitted to do any such thing unless the complaint contained the necessary allegation of negligence ; and the very point before us is whether it does. If it does, of course it would be for the jury to find whether there was negligence, but if it does not, the case could not get to the jury at all.
The said allegations are immediately followed by this general allegation, “ and that said accident was caused by the negligence of the defendant, its agents and sei’vants ”. This does not make a complaint for negligence. It alleges no fact of negligence. There is no such thing as an allegation of negligence except by an allegation of some fact causing the injury, and alleged to be caused by the defendant’s negligence. Are we to hold otherwise in order to save this slovenly and stupid complaint, when our method of pleading is so simple % Ignorance in our profession does tod much harm to be encouraged. Are we to say that a bald allegation that the “accident” — and moreover an accident is never actionable— “ was caused by the negligence of the defendant ” makes a good complaint, and that it is not necessary to allege the fact that caused the injury and that it was caused by the defendant’s negligence ? It would be contrary to the uniform rule in trial courts from the beginning. Once the profession be informed • that such a general empty allegation suffices, the complaint may as well be done away with in negligence actions, for, inasmuch as it would inform the defendant of no issue of fact, it would be a dead letter and useless.
The case of Oldfield v. N. Y. & Harlem R. R. Co. (14 N. Y. 310)
A general statement in the opinion in Edgerton v. N. Y. & Harlem R. R. Co. (39 N. Y. 221) is also cited in support of the said proposition, viz.: “ The complaint contained a general averment, that the injury was received from the negligence .of the defendant and its employees, and it is therefore immaterial, whether the proof
These two obiter expressions were cited in Roblee v. Town of Indian Lake (11 App. Div. 435); Leeds v. N. Y. Telephone Co. (64 id. 484) and Murphy v. Milliken (84 id. 582); but it is manifest on a perusal of these cases that nothing was actually decided in any of them which controls the present case.
We have been recently admonished by the Court of Appeals not to accept as controlling anything in the opinions emanating from it which is outside of the exact point which was before it by the record in the case. “ A judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance. The failure to read the opinions of courts with this fact in mind gives rise to much fruitless litigation” (Colonial City T. Co. v. Kingston R. R. Co., 154 N. Y. 493). Following this admonition, we should be careful not to accept literally the expressions which have been cited from the Oldfield and Edgerton cases as law. They were uttered with reference to the allegations in the complaints in those cases, and must be restricted to that sense.
The judgment should be affirmed.
Judgment and order reversed and new trial granted, costs to abide the event.