59 Ark. 165 | Ark. | 1894
(after stating the facts.) Section 5478, Mansf. Dig. provides: “A bell of at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of two hundred dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to the county; and the corporation shall be liable for all damages which shall be sustained by any person by reason of such neglect.” “Every neglect” creates a cause of action under the above statute. The failure to comply with the requirements of sec. 5478, supra, is not a crime, as was held by this court in Railway Company v. State, 55 Ark. 200. See also Railway Company v. State, 56 Ark. 166. Nor are the same rules as to pleading and evidence in misdemeanors applicable by analogy to cases of this kind. The learned circuit judge, it appears, proceeded as to the proof and' the statute of limitations, as though the appellant had been charged with a misdemeanor.
Sec. 4482, Mansf. Dig., provides that “all actions upon penal statutes, where the penalty or any part .thereof goes to the State or any county or person suing for the same, shall be commenced within two years after the offense shall have been committed, or the cause of action shall have accrued.” So that two years is the period of limitation. If the complaint in this case had alleged that the defendant company, within two years prior to the filing of the complaint, had failed to ring a bell or sound a whistle on one of its engines, at a crossing named, in violation of the statute, would it have been sufficiently definite to have enabled the defendant to make defense? Certainly, under such latitudinous pleading, the defendant could not know on which particular engine the plaintiff was charging the delict occurred, out of perhaps as many as ten thousand that had passed over the crossing within the two years. Counsel, in their brief, make an estimate of the number of trains passing monthly, which, if continued through the two years, would make more than ten thousand trains passing at the crossing. Should the company deny the charge, in order to defend against it successfully, it would have to bring as witnesses the employees on the engine charged with the duty of ringing the bell or blowing whistle. That would put in attendance upon the court a multitude of witnesses to defend a single suit. This is an extreme statement of the case, but it only demonstrates the necessity for definite pleading. True, the time is not material, further than it must be within two years; but it may be all important in the way of designating the particular failure constituting the cause of action.
In cases of this kind the complaint must be made so specific as to advise the company of the particular train on which, and the crossing at which; the alleged failure occurred (whether it be by designating the hour, the direction of travel, the number or kind of train, is immaterial), so that the company maybe permitted, if it desires, to defend against some particular cause of action. The presumption is that the railway company will do its duty, and, as the burden is upon the State to show that she is entitled to the penalty, it is but just and fair that she make her charges specific, and sustain them by corresponding proof.
Mr. Pomeroy says: “The very object and design of all pleading by the plaintiff, and of all pleading of new matter by the defendant, is that the adverse party may be informed of the real cause of action or defense relied upon by the pleader, and may thus have an opportunity of meeting and defeating it, if possible, at the-trial. Unless the petition or complaint on the one hand, and the answer on the other, fairly accomplishes this, purpose, the pleading would be useless ceremony, productive only of delay, and the parties might be better permitted to state their demands orally before the court at the time of the trial. Pomeroy, Rem. & Remed. Rights, sec. 554.
The plaintiff alleged that, on the 24th day of February, 1889, about 11 o’clock a. m., the defendant, on a certain engine of a passenger train going south failed to ring bell or sound whistle, and proved on the trial that in the spring of 1889, on a certain engine of a freight train going north, the failure occurred. This was a total variance—a failure of proof—and does not come within the purview of secs. 5075, 5076 and 5080-81, Mansf. Dig., with reference to amendments.
A freight train is not a passenger. North and south, are antipodes. So that the cause of action alleged, and the cause of action proved, are not only dissimilar, but separate and distinct. The conditions here presented come within the terms of sec. 5077, Mansf. Dig. which provides : “Where however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its-general scope and meaning, it is not to be deemed a case-of variance within the last two sections, but a failure-of proof.”
Had the proof shown that it was on the same identical engine, although the informant might have been mistaken as to the day, that would have been a variance susceptible of correction. But here the discrepancy between the allegata and probata is so great that it becomes a total divergence, which could not be amended without changing the cause of action. Mansf. Dig. sec. 5080.
Mr. Pomeroy says: “If the divergence is total, that is, if it extends to such an important fact, or group' of facts, that the cause of action or defense as proved would be another than that set up in the pleadings, there is plainly no room for amendment, and a dismissal of the complaint or rejection of the defense is the only equitable result.” Pomeroy, Rem. and Remed. Rights,, sec. 554, supra; 2 Rice on Evidence, p. 661 et seq.; Newman on PI. 723; Max. on Code PI. 583; Green’s Pr. and PI. sec. 475 et seq ; Walter v. Bennett, 16 N. Y. Rep. 254; Kelsey v. Western, 2 Comstock’s Rep. 506; Grant v. Burgwyn, 88 N. C. 95.
It follows that the judgment must be reversed, and cause remanded for new .trial.
