145 Me. 10 | Me. | 1950
Two cases come before this court on exceptions by the defendant to the overruling of the first cause set forth in two special demurrers filed by the defendant, said special demurrers being similar in each case. The actions are in tort and purport to charge the defendant with negligence. The special demurrers in each case assigned several causes of demurrer, but, according to the bill of exceptions and briefs, only one cause of special demurrer remains in each case to which the defendant’s exceptions now apply.
Both actions were entered at the May Term 1949 of the Superior Court for York County and on the first day of said term the defendant filed a special demurrer in each case alleging that the declaration was vague, indefinite and uncertain and that defendant was not reasonably informed as to what he would be obliged to meet in the trial of the action in that it did not appear from said declarations
Under the law of this state it is the duty of the plaintiff in an action of negligence to inform the defendant of the facts upon which he relies to establish liability for the injuries alleged and a plaintiff must set out a situation sufficient in law to establish a duty of the defendant towards the plaintiff and that the act complained of was a violation of that duty. Knowles v. Wolman, 141 Me. 120; 39 A. (2nd) 666. The well established applicable principles of pleading in negligence cases have been concisely stated in Chickering v. Power Company, 118 Me. 414, 417; 108 A. 460, and again restated in Ouellette v. Miller, 134 Me. 162, 166; 183 A. 341, and also in Estabrook v. Webber Motor Co., 137 Me. 20, 25; 15 A. (2nd) 25. In Chickering v. Power Company, supra, it is stated “actionable negligence arises from neglect to perform a legal duty......By direct averment a pleader must
The legal duty of the defendant towards plaintiffs’ intestates in negligence cases of this type in this jurisdiction is to use due or ordinary care under the attendant circumstances. It makes no difference what type of carriage is averred in the declaration. However, in the observance of due care differing facts necessarily change the rule of conduct of one who would perform his duty as to such care. There are no degrees of care and no degrees of negligence in this state. The significance of the term “ordinary care” varies with the attendant and surrounding circumstances. See Avery v. Thompson, 117 Me. 120 at Page 123; 103 A. 4; Raymond v. Portland R. R. Co., 10 Me. 529; 62 A. 602; Pomroy v. B & A. R. R. Co., 102 Me. 497; 67 A. 561; Young v. Potter, 133 Me. 104 at Page 112; 174 A. 387. In other words, the fact as to whether the plaintiffs claimed that their intestates were passengers for hire or gratuitous pas
Exceptions overruled in both cases.