103 Tenn. 730 | Tenn. | 1900
This is ah action to recover damages for injuries to the person and property of defendant in ' error. There was a verdict and judgment in his favor in the Court below.
“First Cowl- — Plaintiff avers that defendant hi the conduct of its business in Williamson County, carelessly, willfully, negligently, and unlawfully erected a large pole, firmly set in the ground, on the chartered right of way of the Iiarpeth turnpike, a public thoroughfare in Wililamson County, so that plaintiff, in passing along said thoroughfare on horseback, in the night time, came suddenly and violently in contact with said pole, and thereby sustained severe and dangerous hurts, cuts, bruises, and contusions, from which injuries plaintiff has endured great suffering and distress of mind and body, and has been compelled to incur heavy expenses for necessary medicines, medical attention, and services, and for this plaintiff sues the defendant for eighteen hundred and ninety-five dollars ($1,895) damages, and asks for a jury to try the case.
“Second Count.- — Plaintiff avers that defendant is a body corporate, and doing business in Williamson County, Tennessee, under the general laws of the State of Tennessee relative to foreign corporations. ' Plaintiff avers that defendant carelessly, wrongfully, negligently, and unlawfully erected a large pole, firmly set in the ground, on the right of way of the Harpeth turnpike, a public thoroughfare in Williamson Cormty, so that plaintiff passing along said thoroughfare on horseback in*732 the night, came violently in contact with said pole, and was thereby much hurt, cnt, wonnded, and bruised, and plaintiff’s horse, on which he was riding, was, by coming in contact' with said pole erected by defendant, so hurt, . maimed, and crippled as to be rendered entirely worthless, and for the loss of said horse plaintiff sues the defendant for the stun of $100 damages, and asks for a jury to try the case.”
A demurrer was interposed to the declaration upon the ground that no cause of action was set out in either count because of a failure to aver any fact showing that the demurrant had carelessly, willfully, negligently, and unlawfully erected its pole within the right of way of the turnpike. This demurrer was overruled. This objection was again renewed after verdict by motion in arrest of judgment, which was also overruled.
In the case of Cotton Oil Co. v. Shamblin, 101 Tenn., 263, we had recently to apply the rules of good pleading to a declaration filed in a suit brought to recover damages for an alleged wrongful killing. We then, after a somewhat full examination of the text-books and collation of the cases, held that the declaration in that case was defective, in that it alleged that, the defendant wrongfully and negligently killed the deceased, without averring any fact or facts showing wrong or negligence.
The declaration in the present case is open to
Lacking as it does in this important particular, the demurrer should have been sustained. For error in this regard, the judgment of the lower Court is reversed and the case is dismissed.