| R.I. | Feb 27, 1894
We think that the first count is demurrable, in that it charges negligence without setting forth in particular any act or omission of the defendant constituting negligence. As a general rule it is necessary that a declaration should state the facts on which the supposed duty to the plaintiff was founded and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence without showing hr what respect he was negligent and how he became bound to use care to prevent injury to others. Smith v. Tripp, 13 R. I. 152. The rule is not without exceptions. Cox v. Providence Gas Co., 17 R. I. 199; Parker v. Providence & Stonington Steamboat Co., 17 R. I. 376. But we do not find that these exceptions embrace the case of a collision at a crossing between a railroad train and a traveller on a highway.
The grounds of demurrer to the second count in the declaration raise the question, 1, whether, if a railroad company voluntarily erects and maintains a gate at a highway crossing, the leaving- open of such gate is negligence; and,
We are of the opinion that these questions must be answered in the affirmative.
In State of Maine v. Boston & Maine R. R. Co., 80 Me. 430" court="Me." date_filed="1888-06-19" href="https://app.midpage.ai/document/state-v-boston--maine-railroad-4934873?utm_source=webapp" opinion_id="4934873">80 Me. 430, Chief Justice Peters, in a carefully considered opinion, held that the defendants could not escape liability on the ground that no statute required them to maintain gates at a crossing; that the voluntary establishment of gates is evidence of tlieir necessity, and that being advertised to travellers it is evidence of negligence if they are not properly attended and maintained. Again, in Whelan v. New York, Lake Erie & Western R. R. Co., 38 Fed. Rep. 15, it was held that a railroad company having established at a crossing a gate under the care of a flagman is hound to close the gate when its cars are passing over the crossing, and that failing to do so would he negligence. So, too, it is held that though it may not be negligence for a railroad company to omit to keep a flagman at a crossing still, if one is employed at a particular crossing, his neglect to perform his duties may he sufficient to charge the company. Kissenger v. New York & Harlem R. R. Co., 56 N.Y. 538" court="NY" date_filed="1874-05-26" href="https://app.midpage.ai/document/kissenger-v--ny-harlem-rr-co-3629462?utm_source=webapp" opinion_id="3629462">56 N. Y. 538; Ernst v. Hudson River R. R. Co., 39 N.Y. 61" court="NY" date_filed="1868-03-05" href="https://app.midpage.ai/document/ernst-v--hudson-river-railroad-co-3610584?utm_source=webapp" opinion_id="3610584">39 N. Y. 61; Pierce on Railroads, 353, 354.
While the word ‘ ‘ invitation ” used in the second count in relation to open gates, though it has sometimes been used in the opinions of learned courts, may, perhaps, he open to criticism as too strong a term, it is evident that all that was meant by the pleader as well as by the judges in their opinions, by the use of the word is, that the leaving open of the gates amounted to an implied assurance that the track might be safely crossed. Thus understood, the authorities are numerous, the only cases to the contrary that have come to our attention being cases in Pennsylvania, that open gates, or the absence of the usual signals of an approaching train or engine, are implied assurances .that no train or engine is ap
Demurrer overruled and case remitted to the Common Pleas Division for trial.