The plaintiff sought to recover damages for the negligent killing of her intestate by the defendant. The only allegation of (698) negligence stated in the complaint was as follows:
"That on the _____ day of ________, 18__, the deceased, the plaintiff's intestate, was going to his home, and walking upon the defendant's track. He was, by the negligence of the defendant and its servants, in that it failed to give any notice of its approach, by whistle or bell or otherwise, run over by defendant's locomotive and killed, without any fault of plaintiff's intestate."
When the case was called for hearing, the defendant moved to dismiss the complaint on the ground that the same did not state facts sufficient to constitute a cause of action, as an oral demurrer. The demurrer was sustained, and plaintiff appealed. The demurrer was properly sustained, as the only negligence is that the defendant failed to give any notice of the approach of its train, "by whistle, bell, or otherwise," to the intestate, who was walking on its track. We know of no law which imposes a liability upon a railroad company upon such meager allegations.
Affirmed. *Page 428
(699)