72 P. 225 | Kan. | 1903
Lead Opinion
The opinion of the court was delivered by
J. W. Garrison brought an action against the Missouri, Kansas & Texas Railway Company to recover damages for property destroy ed by fire started by sparks from an engine of defendant, and recovered a judgment, which the railway company now seeks to have reversed. The only assignment of error it will be necessary to examine grows out of the overruling of a motion to make the petition more definite and certain. The only allegation of, negligence in the petition was as follows, the same language being used in each of the two counts:
“The defendant, by and through its agents and employees in the use of said engine from which fire escaped and destroyed the property as aforesaid of this*626 plaintiff, was careless and negligent in the operation of its railway.”
The defendant filed a motion asking that the plaintiff be required to make his petition more definite and certain by setting out specifically whether the negligence of the defendant consisted in using an engine defectively equipped with appliances to prevent the escape of sparks and coals of fire, or whether it was negligent in the management and handling of the engine at the time thó fire was communicated. The motion also asked, in effect, that the plaintiff be required to state whether he relied on negligence through failure to keep the right of way clear of combustible material. The court overruled this motion. The jury found specially that the negligence of the defendant consisted in the use of a defective spark-arrester.
The defendant in error, in support of the ruling of the trial court, argues that in such cases as this negligence need only be pleaded in general terms, and cites authorities to that effect. We shall assume this contention to be correct. Indeed, it was said in St. L. & S. F. Rly. Co. v. Snaveley, 47 Kan. 637, 28 Pac. 615, that in such a case negligence need not be pleaded at all, it being sufficient merely to allege that the fire was caused by the operation of the railroad, because, under the statute, that is all that need be proved. But when the pleader attempts to set out the specific negligence relied upon the ordinary rules of pleading obtain. If he alleges negligence of one kind, he cannot recover by showing negligence of a different sort. In St. L. & S. F. Rly. Co. v. Fudge, 39 Kan. 543, 18 Pac. 720, it was. held that an allegation that the employees of a railway company, “in operating and running its engine . . . negligently and carelessly permitted said engine to cast out sparks, . . .”
In the present case a motion to make the petition more definite and certain was proper, not because it was necessary in the first instance for plaintiff to set out thé particular form of negligence relied on, nor because, having been more definite in his charge than was necessary, he may on that account be required to be yet more specific, but because, having elected to define the character of the negligence alleged, he was under an obligation to use plain and unambigous language for the purpose. The motion was not a demand that plaintiff be required to add any new statements to his petition, but that he be required to disclose just what was meant by those he had already voluntarily made. Either the part of the petition above quoted does not include a charge of negligence through the use of defective appliances at all, or it includes it, but only by a forced and unnatural construction. Under the former view the motion was
It was not error for the district court to overrule the motion to make definite and certain so far as it related to the matter of negligence through permitting the accumulation of inflammable material along or near the right of way, for the reason that the petition, as it stood, could by no possible construction be held to refer to that feature of the case, and would not support evidence in that line ; but we hold that, in view of the subsequent proceedings, it was material error to overrule the motion on the other ground —that already discussed.
The judgment is reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
Dissenting Opinion
(dissenting): Under the statute all that the plaintiff was required to allege or prove, in order to recover, was that the fire was caused by the operation of the defendant’s railroad and the amount of his damages. (Gen. Stat. 1901, § 5923.) Apresumption of negligence arises from the fact that the fire was
This case, as will be observed, does not turn on a variance between the pleading and the proof, nor because a recovery was allowed on one kind of negligence when another was pleaded, but because the petition was more specific than the law requires. The fact that it was more specific was a benefit to the defendant and this benefit ought not to be used as a club against its opponent. Under the rulings in this and other states a redundancy in allegations in fire cases is not a fatal defect. (Ft. S. W. & W. Rly. Co. v. Tubbs, 47 Kan. 630, 28 Pac. 612; St. L. & S. F. Rly. Co. v. Snaveley, 47 id. 637, 28 Pac. 615; Rose v. The Chicago & Northwestern R’y Co., 72 Iowa, 625, 34 N. W. 450; Engle v. The Chicago M. & St. P. Ry. Co., 77 id. 661, 37 N. W. 6, 42 N. W. 512; Campbell v. The Mo. Pac. R’y Co., 121 Mo. 340, 25 S. W. 936, 25 L. R. A. 175, 42 Am. St. Rep. 530.)
The company was not, and, of course, could not have been, hampered or embarrassed by the fact that the petition was more specific than was necessary.