Walsh v. Western Railway Co.

34 Fla. 1 | Fla. | 1894

Mabry, J.:

The sufficiency of the amended declaration to which a demurrer wras sustained is the only question involved here. The first ground of the demurrer questions the sufficiency of the allegation of negligence on the part of the defendant railway company. Negligence is the gist of the action, and must of course be •■sufficiently alleged. Plaintiff alleges a defective railroad track and defective cars used by defendant as ■grounds of negligence, and the first ground of the demurrer is that the defects in the machinery are not ■stated with sufficient certainty.

A declaration by an employe against the company alleging generally without stating specific facts that the plaintiff was injured in consequence of the negligence of the defendant in operating and managing its road and cars, or in using defective implements and .machinery, will not be sufficient. Such a declaration would be too general and violate the rule prohibiting the allegations of mere conclusions of law. It is said in Grinde vs. M. & St. P. R. Co., 42 Iowa, 876, that “it is not allowable to plead mere abstract conclusions ■of law, having no element of fact; they form no part *of the allegations constituting a cause of action; but if they contain the elements also of a fact construing the language in its ordinary meaning, then force and effect must be given to them as allegations of fact, as when necessaries are furnished to an infant, or when a ■deed or mortgage is alleged as having been made, or the ownership of property is asserted, the general allegation is sufficient, being the ultimate fact to be established by evidence.” In alleging negligence the rule does not require that the facts constituting the negligence shall be set out in the declaration, but it is sufficient if the acts constituting the injury are - specified .and it is alleged that they were negligently and carelessly done. Of course the acts, the doing of which caused the injury, being the ultimate facts to be established by evidence, must when proven constitute a cause of action against the defendant. In the case of the Ohio & M. R. Co. vs. Selby, 47 Ind., 471, the complainant averred that the defendant railroad company did not use due care, diligence and skill in carrying the plaintiff,. but, on the contrary, the track of the railroad was in bad condition and repair, and the defendant by its servants negligently, unskillfully and carelessly ran its train of cars whereby the plaintiff was damaged in the manner specified. On demurrer this complaint was held not to be too general as to the •condition of the track. The rule established by the authorities is that in actions founded upon negligence it is not necessary for the plaintiff in his declaration to set out the facts constituting the negligence, but an allegation of sufficient acts, the doing of which caused the injury, and an averment that such acts were negligently and carelessly done will suffice. Walhier vs. Hannibal & St. J. R. Co., 71 Mo., 514; Schneider vs. Missouri Pacific Ry. Co., 75 Mo., 295; Mack vs. St. Louis, K. C. &N. Ry. Co., 77 Mo., 232; Indianapolis, P. & C. R. Co. vs. Keeley’s Admr., 23 Ind., 133; St. Louis & S. E. Ry. Co. vs. Mathias, 50 Ind., 65; Kessler vs. Leeds, 51 Ind., 212; Pittsburgh, C. & St. L. R. Co. vs. Nelson, Ibid, 150; Johnson vs. St. Paul & Deluth R. Co., 31 Minn., 283; 2 Thompson on Negligence, p. 1246, sec. 26. If we concede that the rule should be applied with more strictness when an employe is suing a company in whose service he is engaged, still our judgment is that the declaration in the case before us is sufficient in the particulars mentioned. The allegations are that the defendant disregarded its duty in reference to constructing and maintaining its railroad track, and that a designated portion of it was so negligently, carelessly, improperly and defectively constructed, inspected and maintained that the said track broke and gave way whereby the injury was done that resulted in the death of plaintiff’s husband, and that the cars attached to the engine on which the said husband was riding were so carelessly, negligently, insecurely and defectively constructed and inspected that they broke, gave way and fell apart and thereby caused him to be thrown from the engine and suffered injuries, from the effects of which he died. The facts alleged in reference to the defective track and cars, if true, show a failure on the part of the company to perform positive duties resting upon it to provide suitable instrumentalities and safe machinery with which to work. South Florida R. R. Co. vs. Weese, 32 Fla., 212, 13 South. Rep., 436.

If such pleading was liable to embarass or delay a fair trial of the action the defendant could have applied to the court, under sec. 55, page 826 McClellan’s Digest, to have it amended so as to more definitely state in what particulars the defects existed. As it stands, the declaration in the particulars mentioned shows, in our judgment, a cause of action. This conclusion does not in any way conflict with the rule that where one cause of action is alleged in the declaration the plaintiff will be confined to that in his proof and recovery. Parrish vs. Pensacola & Atlantic R. Co., 28 Fla., 251, 9 South. Rep., 696; Jacksonville, T. & K. W. Ry. Co. vs. Neff, 28 Fla., 373, 9 South. Rep., 653; Jacksonville, T. & K. W. Ry. Co. vs. Galvin, 29 Fla., 636, 11 South. Rep., 231; South Florida R. R. Co. vs. Weese, 32 Fla., 212, 13 South. Rep., 436.

The other grounds of the demurrer are based upon the view that plaintiff’s husband was employed as superintendent, and as such was engaged in the performance of duties requiring him to exercise watchfulness and care over defendant’s road and cars and see that they were in proper repair and fit for use. It is contended that an employe can not recover for an injury suffered in the course of his employment, for defects in the machinery used, unless the employer knew, or ought to have known, of the defects, and the servant did not know, or did not have equal means of knowledge of the defects. There is no doubt that it is a complete answer, independent of the act of 1887, Chapter 3744, to the claim for damages resulting from a failure on the part of the company to furnish suitable instrumentalities that the injured servant had full knowledge of the situation and voluntarily engaged in the employment, or continued therein with such knowledge without objection or protest, and without any assurance on the part of the employer, to provide better. South Florida R. R. Co. vs. Weese, supra. The declaration before us, however, alleges positively that the defendant company did know of the defects, mentioned, and that plaintiff’s husband did not know of them, nor had he reason to anticipate or provide against them- before entering into the service, or subsequently till the day of the injury. It is true it is alleged that said husband was employed as a servant for hire and performed duties as such in the capacity of superintendent without specifying what his duties were, but it is also alleged that the risks and hazards resulting from the defective track and cars to which he was subjected in the performance of his duties while riding on the engine were not such as were required or contemplated by his employment as such servant and superintendent, and that he was without fault in the premises. If this be true there is no ground for the conclusion that plaintiff s husband was guilty of contributory negligence, or that he waived in any way the performance of the duty on the part of the defendant to provide a good railroad track and safe cars in the operation of its said road. The legal presumption may be, in the absence of any allegations to the contrary, that the powers and duties of a superintedent are extensive, but the powers and duties conferred upon such an agent by different companies, as well as the usage of companies as to such matters, may differ essentially. 1 Wood on Railroads, pp. 498, 499. In the face of what is alleged in plaintiff’s declaration we can not assume on demurrer that her husband knew of the defects, or that it was his duty to know of them. The cause of action in the present case arose subsequent to the enactment of Chapter 3744, but no contention 'is made that this act affects the sufficiency of the delaration in any way, nor do we see that its allegations make it necessary to enter into any consideration of said act.

The declaration, in our judgment, states aprima facie cause of action against the company, and the demurrer should have been overruled. The judgment of the court sustaining the demurrer and entering judgment for the defendant is reversed, and the cause will be remanded for further proceedings.