71

ful act on the part of the carrier or its employees.70 It is not necessary formally to charge that such was the fact; it is sufficient that the facts alleged lead, with reasonable certainty, to the conclusion that the injury proximately resulted from the negligence charged.72

Where several acts of negligence are charged, it need not be alleged which act was the direct or sole cause of the injury,73 and, where all of them together might have caused it, it may be alleged that each of them contributed to the injury.74

Mental suffering. In those jurisdictions in which there can be no recovery for mental suffering un

70. Ala-Mobile Light, etc., Co. v. Bell, 153 Ala. 90, 45 S 56; Birmingham R., etc., Co. v. Adams, 146 Ala. 267, 40 S 385, 119 AmSR 27 and note; Birmingham R., etc., Co. v. Frazier, (A.) 69 S 969.

Ga.-Burnett v. Rome R., etc., Co., 7 Ga. A. 323, 66 SE 803.

Ind.-Reibel v. Cincinnati, etc., R. Co., 114 Ind. 476, 17 NE 107; Louisville, etc., R. Co. v. Thompson, 107 Ind. 442, 8 NE 18, 9 NE 357, 57 AmR 120; Hammond, etc., Electric R. Co. v. Antonia, 41 Ind. A. 335, 83 NE 766. Minn. Floody v. Great Northern R. Co., 104 Minn. 474, 116 NW 943. Mo.-Rawson v. Kansas City El. R. Co., 129 Mo. A. 613, 107 SW 1101. Oh.-Shrum v. Cincinnati, etc., R.

Co.. 10 OhS&CP 244, 8 OhNP 26.

S. C.-Jarrell v. Charleston, etc., R. Co., 58 S. C. 491, 36 SE 910.

Tex. International, etc., R. Co. v. Downing, 16 Tex. Civ. A. 643, 41 SW 190.

[a] Allegations held insufficient.(1) A complaint which charges the negligence to the act of the conductor in signaling the motorman to go ahead while plaintiff was on the side board or step preparatory to alighting, and avers the act of the motorman in starting the car with a sudden jerk as being the proximate cause of the injury, but does not aver that the start was negligently made, is bad and subject to demurrer because the negligence averred was not the proximate cause of the injury. Mobile Light, etc., Co. v. Bell, 153 Ala. 90, 45 S 56. (2) Where plaintiff alleges that while passing through the doors of defendant's station, which were opened in the usual manner, "said doors, without notice or warning to plaintiff, suddenly closed, and plaintiff was crushed between the same," and that she suffered certain specified injuries, the petition does not state a cause of action, as there is no allegation that the injuries resulted from defendant's negligence, and there is no necessary presumption of negligence from the facts stated. Rawson v. Kansas City El. R. Co., 129 Mo. A. 613, 615, 107 SW 1101. (3) Where the complaint alleged the negligent delay of the train on which plaintiff was a passenger for several hours, and that such train was negligently stopped for over half an hour on a high trestle where plaintiff, on account of the darkness and the poor lights furnished by defendant on the train, missed his footing, and fell to the ground, a demurrer for failure to state a cause of action was properly sustained, since the complaint failed to show defendant's negligence to be the proximate cause of the injury. Jarrel v. Charleston, etc., R. Co., 58 S. C. 491, 36 SE 910.

[b] As between operating company and owner of switch.-Where a passenger thrown from a train derailed by failure of a switch to lock sues the operating company whose employee is alleged to have been negligent in the use of the switch, and the carrier to whom the switch belonged, alleging that it was in a defective condition, and the only allegation as to the proximate cause of the derailment is that the oper

ating company neglected properly to throw and lock the switch, as was necessary, the complaint does not, as against a demurrer, state a cause of action against the company owning the switch. Floody v. Great Northern R. Co., 104 Minn. 474, 116 NW 943.

[c] Starting of train while passenger alighting.-Where a petition by a passenger traveling under a live stock contract, authorizing him to alight at intermediate stations to look over his stock, alleged that the train stopped at night; that the conductor who was on the caboose with plaintiff told him that it was at a certain station; that plaintiff, relying on such information, attempted to alight when the train suddenly started, throwing him from the train, which was not at a station but over a trestle, and injuring him; and that the negligence of the conductor was the proximate cause of the injury, it could not be said, as a matter of law, that the conductor should not have anticipated that plaintiff would attempt to alight in reliance on his statement, and hence negligence of the conductor proximately causing the injury was alleged. International, etc., R. Co. v. Downing, 16 Tex. Civ. A. 643, 41 SW 190.

[d] Elevator case.-Where, in an action for injuries to a passenger by the fall of an elevator, the petition, after specifically alleging wherein the elevator and its appurtenances were defective, alleged that as the proximate result of such defects, specifically naming a number of them, and among them the negligence of defendant in failing to keep the elevator and its appurtenances, or their respective parts, in repair, added the phrase, "and by reason of other negligences herein alleged" the elevator on a specified date fell with great force while plaintiff was passenger, seriously and permanently injuring her, such allegations were sufficient to allege the causal connection between the acts of negligence specified and the injuries complained of. Alexander v. McGaffey, 39 Tex. Civ. A. 8, 88 SW 462.

a

71. Hammond, etc., Electric R. Co. v. Antonia, 41 Ind. A. 335, 83 NE 766.

72. Ala.-Central of Georgia R. Co. v. Bell, 187 Ala. 541, 65 S 835; Birmingham R., etc.. Co. v. Fisher, 173 Ala. 623, 55 S 995; Birmingham R. Light, etc., Co. v. Wright, 153 Ala. 99, 44 S 1037; Kansas City, etc.. R. Co. v. Matthews, 142 Ala. 298, 39 S 207; Orr v. Boockholdt, 10 Ala. A. 331. 65 S 430.

Cal. Wilson v. Oakland Tract. Co., (A.) 101 P 413.

Ga.-Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805, 56 SE 1006, 9 LRANS 769, 9 AnnCas 553.

Ind.-Baltimore, etc., R. Co. V. Huskins, 183 Ind. 614, 109 NE 764; Indianapolis St. R. Co. v. Schmidt, 163 Ind. 360, 71 NE 201; Southern R. Co. v. Adams, 52 Ind. A. 322, 100 NE 773; Indianapolis Southern R. Co. v. Tucker, 51 Ind. A. 480, 98 NE 431.

Mich.-Morgan v. Lake Shore, etc., R. Co., 138 Mich. 626, 101 NW 836, 70 LRA 609.

Mo.-Austin v. St. Louis, etc., R. Co.. 149 Mo. A. 397, 130 SW 385.

R. I.-McCauley v. Rhode Island Co., 25 R. I. 558, 57 A 376.

Tex.-Pullman Co. v. Hoyle, 52 Tex. Civ. A. 534, 115 SW 315; Missouri, etc., R. Co. v. Overfield, 19 Tex. Civ. A. 440, 47 SW 684.

"It is sufficient if the facts averred carry with them the necessary inference that such negligence was the proximate cause of the injury." Hammond, etc., Electric R. Co. v. Antonia, 41 Ind. A. 335, 83 NE 766.

[a] Illustrations.-(1) A declaration alleging that the employees of a street railroad company negligently permitted a car on which plaintiff was riding as a passenger to come to a sudden stop, so that one of the passengers was thrown against plaintiff, causing her injury, sufficiently alleges the proximate cause of the injury. McCauley v. Rhode Island Co., 25 R. I. 558, 57 A 376. (2) A complaint in an action for injuries to a passenger of a private carrier which alleges that the carrier did not furnish a skillful driver, but a negligent one, as a result of whose negligence the injuries occurred, shows the causal connection between the injuries and the negligence of the carrier. Orr v. Boockholdt, 10 Ala. A. 331, 65 S 430.

73. Parker v. United R. Co., 154 Mo. A. 126, 133 SW 137. See also infra § 1412.

74. Parker v. United R. Co., 154 Mo. A. 126, 133 SW 137. 75. See supra § 1395. 76.

Cleveland, etc., R. Co. v. Stewart. 24 Ind. A. 374, 56 NE 917.

77. Joinder of causes of action generally see Actions §§ 188-274.

Splitting causes of action generally see Actions §§ 275-307.

78. New York, etc.. R. Co. v. Callahan, 40 Ind. Á. 223, 81 NE 670; Paducah Tract. Co. v. Baker, 130 Ky. 360, 113 SW 449, 18 LRANS 1185; Spaulding v. Metropolitan St. R. Co., 129 Mo. A. 607, 107 SW 1049; Foland V. Southwest Missouri Electric R. Co., 119 Mo. A. 284, 95 SW 958; Gulf, etc., R. Co. v. Buford, 2 Tex. Civ. A. 115, 21 SW 272.

"The plaintiff in an action like this has the right to state, in as many different ways as the facts will justify, the negligence that caused the injuries complained of. He is not confined to one act of negligence

on

the part of the defendant, but may state separate and distinct concurring acts that produced the accident, and may recover upon sufficient proof to support one or more of them." Paducah Tract. Co. v. Baker, 130 Ky. 360, 366, 113 SW 449, 18 LRANS 1185.

[a] Illustration.-A complaint for injuries to a street railroad passenger may charge that the accident was due to the negligence of the motorman or to defects in the car. Paducah Tract. Co. v. Baker, 130 Ky. 360, 113 SW 449, 18 LRANS 1185.

[b] Different negligent acts may be averred in one paragraph, and proof of any one is sufficient to sustain the action. New York, etc.. R. Co. v. Callahan, 40 Ind. A. 223, 81 NE 670. 79. Raming v. Metropolitan St. R. Co., 157 Mo. 477, 57 SW 268; Thomas v. Charlotte, etc., R. Co., 38 S. C. 485, 17 SE 226.

duplicity merely because it joins the different disastrous consequences of defendant's acts as items of plaintiff's damages.80

[§ 1416] (10) Amendment.81 In actions by passengers against carriers, as in other cases, amendments of the declaration, complaint, or petition may be made which do not introduce new causes of action,82 and in a proper case amendments are necessary and should be made where allegations material to the cause of action have been omitted.83 But a declaration in tort cannot be so amended as to convert it into an action on the contract of carriage.

[a] Motion to elect.-If one paragraph of a complaint contains two distinct causes of action, one for exemplary damages and one for actual damages, each cause should be stated separately, and on the trial plaintiff should be required to elect; but, in order that plaintiff should be required to state each cause separately and thereafter to elect, a motion from defendant for that purpose is necessary, and in the absence of such motion plaintiff is entitled to elect of his own motion to try the cause of action for actual damages. Thomas v. Charlotte, etc., R. Co., 38 S. C. 485, 17 SE 226. 80.

Choctaw, etc., R. Co. v. Hickey, 81 Ark. 579, 99 SW 839; Cincinnati, etc., R. Co. v. Chester, 57 Ind. 297; Devino v. Central Vermont R. Co., 63 Vt. 98, 20 A 953.

[a] There is no misjoinder of causes of action where a complaint for damages for personal injuries, and an amendment after the death of plaintiff wherein the administrator sought damages for the next of kin, are united in the same complaint, the proceedings and parties affected being the same. Choctaw, etc., R. Co. v. Hickey, 81 Ark. 579, 99 SW 839.

[b] Husband and wife.-Where a husband sues for injuries sustained by himself and his wife in the same accident, he may join the whole damage to him in one count. Cincinnati, etc., R. Co. v. Chester, 57 Ind. 297; Devino v. Central Vermont R. Co., 63 Vt. 98, 20 A 953.

81. Amendment of pleadings generally see Pleading [31 Cyc 359].

82. U. S.-Atlantic, etc., R. Co. v. Laird, 164 U. S. 393, 17 SCt 120, 41 L. ed. 485.

Ala. Hess v. Birmingham R., etc., Co., 149 Ala. 499, 42 S 595.

Ga.-Southern R. Co. v. Jordan, 129 Ga. 665, 59 SE 802.

Ill. Chicago, etc., R. Co. v. Wallace, 104 Ill. A. 55 [aff 202 Ill. 129, 66 NE 1096].

Mo.-Dougherty v. Missouri R. Co., 97 Mo. 647. 8 SW 900, 11 SW 251.

N. Y.-Scarry v. Metropolitan St. R. Co., 39 Misc. 802, 81 NYS 284.

Tex-Mexican Cent. R. Co. v. Mitten, 13 Tex. Civ. A. 653, 36 SW 282. [a] Details of negligence.-(1) Where an allegation of negligence in starting a car is amended by adding that the injury was also caused by the character of the horses, which character was known to defendant, the amendment does not substitute a

new cause of action. Dougherty v. Missouri R. Co., 97 Mo. 647, 8 SW 900, 11 SW 251. (2) Where the negligence alleged was a failure to provide light, an amendment alleging unsafe construction of a platform does not introduce a new cause of action. Alabama, etc., R. Co. V. Arnold, 80 Ala. 600, 2 S 337. (3) An allegation that a car's motion was imperceptible when plaintiff's wife started to alight may be changed to "imperceptible to her." Shareman v. St. Louis Transit Co., 103 Mo. A. 515, 78 SW 846. (4) An original count averring that "the defendant carelessly and negligently caused the train to be suddenly and violently started and moved" while plaintiff was alighting therefrom states the same cause of action as an additional count alleging that a reason

84

[ 1417] b. Plea or Answer.85 The plea or answer in an action against a carrier by a passenger for personal injuries is governed by the general rules relating to such pleadings in civil cases generally.86 Thus the plea or answer should allege facts setting up a complete defense to the allegations in the declaration or complaint.87 Matters of defense, as to which there is no allegation in the complaint, must be set up by special plea, 88 such as an agreement of the passenger to assume the risk;89 and in order to entitle the carrier to make the defense that it has adopted and promulgated rules and regula

two

without the knowledge or consent of defendant, yet undertakes to defend by exculpating them, and fails so to do, it is bad on demurrer. Thus, where the cause of action set up was an injury incidental to a collision caused by negligence on the part of defendant's employees in failing to give proper signals, "which would have enabled the train on which plaintiff was riding to avoid the collision, or would have enabled plaintiff to escape from the impending danger," a plea was held bad which failed to show that the injury would not have been avoided by the giving of the signals. Highland Ave., etc., R. Co. v. Swope, 115 Ala. 287, 22 S 174. (2) Where a complaint for causing the death of a passenger

does not charge that defendant was a common carrier, but only that it operated a train on a railroad, and that the decedent was being carried by defendant as a passenger, pleas alleging that the deceased voluntarily, without invitation, and without compensation to defendant, boarded the car on which he was riding, show a complete defense to counts of the complaint, based on simple negligence. Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 S 111. [b] Direct and positive denialUnder a code provision requiring an answer to contain a general or specific denial of each material allegation of the complaint, controverted by defendant, or of any knowledge or information thereof sufficient to form a belief, and prescribing the modes of traversing a complaint, whichever mode is adopted it must be a direct, positive, and explicit denial; a negation, not an allegation. Hence an answer that defendant, "upon its information and belief, says that said plaintiff was not by reason of said collision or at all bruised or injured in the back and thigh or elsewhere, and that he has not by reason of said alleged injuries ever since or for any time been sick, sore and lame and unable to attend to his ordinary business, and that said plaintiff has not been at the expense of medical treatment and medicines in consequence thereof, and that said plaintiff has not by reason of the premises suffered damages," etc., was bad, and an order directing a judgment for plaintiff on the answer as frivolous was sustained. Powers v. Rome, etc., R. Co., 3 Hun (N. Y.) 285.

88. Alabama City, etc., R. Co. v. Cox, 173 Ala. 629, 55 S 909; Pittsburgh, etc., R. Co. v. Higgs, 165 Ind. 694, 76 NE 299, 4 LRANS 1081.

[a] Illustration.-Where a carrier carrying a passenger beyond her station and requiring her to alight and to walk back to the station believed that the injury sustained by the passenger while walking back to the station was proximately caused by her defective eyesight, and not by the negligence of the trainmen, it must by special plea allege such facts in the absence of any allegation in the complaint as to defective eyesight. Alabama City, etc., R. Co. v. Cox, 173 Ala. 629, 55 S 909.

89. Pittsburgh, etc.. R. Co. V. Higgs, 165 Ind. 694, 76 NE 299, 4 LRANS 1081; Citizens' St. R. Co. v.

90

But

Twiname, 111 Ind. 587, 13 NE 55; Fish v. Delaware, etc., R. Co., 211 N. Y. 374, 105 NE 661 [rev 158 App. Div. 92, 143 NYS 365 (aff 79 Misc. 636, 141 NYS 245)]; McElwain__v. Erie R. Co., 21 NYWkly Dig 21. see Kimball v. Boston, etc., R. Co., 55 Vt. 95 (holding that a plea that the passenger was riding on a free ticket and had assumed the risks of injury was bad as amounting to the general issue).

[a] Thus, in an action for personal injuries to plaintiff incurred while traveling as a passenger on defendant's road, unless the facts alleged in plaintiff's complaint are of such a character as to show that he assumed the risk, or that the liability of defendant was limited by some special contract, defendant. if it relies on such an agreement or contract, must specially plead it as defense. Pittsburgh, etc., R. Co. v. Higgs, 165 Ind. 694, 76 NE 299, 4 LRANS 1081.

a

90. Lane v. Choctaw, etc., R. Co., 19 Okl. 324, 91 P 883.

91. Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 S 318; Bolton v. Missouri Pac. R. Co., 172 Mo. 92, 72 SW 530; Ellet v. St. Louis, etc., R. Co., 76 Mo. 518; Kimball v. Boston, etc., R. Co., 55 Vt. 95.

[a] Illustrations. (1) A special plea to the effect that the acts committed by plaintiff were the proximate cause of the injury sets up a defense amounting to the general issue and is properly stricken out on motion. Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 S 318. (2) In an action based on the want of care on the part of employees and defects in a roadbed, a special plea alleging that the accident was caused by a rainstorm should be stricken out as alleging matter to be shown under the general denial. Ellet v. St. Louis, etc., R. Co., 76 Mo. 518.

92. Illinois Cent. R. Co. v. Minor, 69 Miss. 710, 11 S 101, 16 LRA 627; St. Louis Southwestern R. Co. v. Parks, 40 Tex. Civ. A. 480, 90 SW 343. See generally Pleading [31 Cyc 128].

[a] A defect of parties when not pleaded will be deemed to be waived. St. Louis Southwestern R. Co. V. Parks, 40 Tex. Civ. A. 480, 90 SW 343.

93. See generally Pleading Cyc 206].

[31

94. Burbridge V. Kansas City Cable R. Co.. 36 Mo. A. 669.

95. Kloepher v. Osborne, 177 Ill.

A. 384.

96. Kloepher v. Osborne, 177 Ill. A. 384.

97. Birmingham R., etc.. Co. V. Moore, 151 Ala. 327. 43 S 841.

98. See generally Pleading [31 Cyc 670].

99. U. S.-Camden, etc., R. Co. v. Rice, 137 Fed. 326, 69 CCA 656.

Ill. Chicago, etc., R. Co. v. Doan, 195 II. 168, 62 NE 826 [aff 93 Ill. A. 247]; Wood v. Illinois Cent. R. Co., 185 III. A. 180.

Miss.-Yazoo. etc., R. Co. V. Humphrey, 83 Miss. 721, 36 S 154.

98

97

99

Mo.-Scrivner v. Missouri Pac. R. Co., 260 Mo. 421, 169 SW 83; Conway v. Metropolitan St. R. Co., 161 Mo. A. 81, 142 SW 1101; Canaday v. United R. Co., 134 Mo. A. 282, 114 SW 88.

Mont.-John v. Northern Pac. R. Co., 42 Mont. 18, 111 P 632, 32 LRA NS 85.

N. Y. Ulrich V. Interborough Rapid Transit Co., 157 NYS 753; Rubin v. Interborough Rapid Trasit Co., 136 NYS 60.

N. C.-Williams v. Gill, 122 N. C. 967, 29 SE 879.

Tex.-Missouri, etc., R. Co. v. Huff, 98 Tex. 110, 81 SW 525 [rev (Civ. A.) 78 SW 249; Ft. Worth, etc., R. Co. v. Taylor, (Civ. A.) 162 SW 967.

[a] Gross negligence.-(1) Where the declaration alleges mere negligence and defendant gives notice, as required by statute, that it will rely on contributory negligence as an affirmative defense, and plaintiff gives no counter notice of matter intended to be proved in avoidance of the special defense, and does not object to testimony in support of such defense, no issue of gross negligence is presented. Yazoo, etc., R. Co. v. Humphrey, 83 Miss. 721, 36 S 154 (under Rev. Code [1892] § 686). (2) Where, in an action for injuries received while plaintiff was traveling on a free pass furnished him by defendant as an official of another railroad company, which exempted defendant from liability for injuries caused by its negligence or otherwise, the court charged, on plaintiff's request, that a common carrier cannot be exonerated by any agreement from liability for the gross negligence of itself or servants, so that, if defendant was guilty of gross negligence, causing plaintiff's injuries, the jury must find for plaintiff; plaintiff, by tendering the instruction, tacitly adopted the court's theory that plaintiff was riding on a free pass, and the only question in addition to that of damages was whether defendant was guilty of gross negligence. John v. Northern Pac. R. Co., 42 Mont. 18, 111 P 632, 32 LRANS 85.

[b] Discovered peril.-Where plaintiff alleged that he was in the usual and proper place for taking a street car at the time he was struck, an allegation that defendant negligently failed to stop the car after discovering plaintiff's presence "at said time and place" was insufficient to raise the issue of discovered peril. Townsend v. Houston Electric Co., (Tex. Civ. A.) 154 SW 629.

[c] Changing issue.-In an action for an assault committed by an employee on a passenger on defendant's train, it is not prejudicial to defendant to change the issue. "Did the defendant, through the conductor and other agents or servants, unlawfully assault and beat the plaintiff?" tendered by plaintiff, by substituting "or" in place of "and," where the complaint alleged that plaintiff was assaulted by the conductor and another person in defendant's employment. Williams v. Gill, 122 N. C.

967, 29 SE 879.

1. Ala.--Birmingham R., etc., Co. v. Yates. 168 Ala. 381, 53 S 915.

Cal.-Champagne v. Hamburger, 169 Cal. 683. 147 P 954; Waniorek v. United R. Co., 17 Cal. A. 121, 118 P 947.

Del.-Freeman v. Wilmington, etc., Tract. Co., 26 Del. 107, 80 A 1001.

Ill-Glass v. Chicago Union Tract. Co., 144 Ill. A. 116; Chicago Union Tract. Co. v. Lowenrosen, 125 Ill. A. 194 [aff 222 Ill. 506, 78 NE 813]; Chicago, etc., R. Co. v. Hawk, 36 II. A. 327 [rev on other grounds 138 Ill. 37. 27 NE 450; and aff 147 Ill. 399, 35 NE 139].

Ind.-Louisville. etc., R. Co. V. Renicker, 8 Ind. A. 404, 35 NE 1047. Iowa. Fitzgibbon v. Chicago, etc., R. Co., 108 Iowa 614, 79 NW 477.

Ky.-Belt Electric Line Co. v. Tomlin, 40 SW 925, 19 KyL 433; Louisville, etc., R. Co. v. Hampton, 7 Ky. Op. 296.

Md.-Plummer v. Washington, etc., R. Co.. 124 Md. 200, 92 A 536.

Mass.-Lemay v. Springfield St. R. Co., 210 Mass. 63, 96 NE 79, 37 LRA NS 43.

Mich.-Krouse

v. Detroit United R. Co., 170 Mich. 438, 136 NW 434. Minn.-DeFoe v. St. Paul City R. Co., 65 Minn. 319, 68 NW 35.

Mo.-Beave V. St. Louis Transit Co., 212 Mo. 331, 111 SW 52; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 SW 583; Becker v. Lincoln Real Est., etc., Co., 174 Mo. 246, 73 SW 581 (elevator case); Chitty v. St. Louis, etc., R. Co., 148 Mo. 64, 49 SW 868; Allen v. Dunham, 188 Mo. A. 193, 175 SW 135.

V.

Mont.-Pierce v. Great Falls, etc., R. Co., 22 Mont. 445, 56 P 867. Nebr.-Fremont, etc.. R. Co. Root, 49 Nebr. 900, 69 NW 397. N. Y.-McGrane v. Nassau Electric R. Co., 134 App. Div. 257, 118 NYS 896.

N. C.-Moss v. North Carolina R. Co.. 122 N. C. 889. 29 SE 410.

Tex.-Ft. Worth, etc., R. Co. V. Taylor, (Civ. A.) 162 SW 967; St. Louis Southwestern R. Co. v. Johnson, 100 Tex. 237, 97 SW 1039; Galveston, etc., R. Co. v. Watts. (Civ. A.) 182 SW 412; Norton v. Galveston, etc.. R. Co., (Civ. A.) 108 SW 1044; Missouri, etc., R. Co. v. Redus, 48 Tex. Civ. A. 322, 107 SW 63.

Eng. Mayor v. Humphries, 1 C. & P. 251, 12 ECL 151.

[a] Thus, (1) where the gist of an action is for injuries received while alighting from a train, a recovery cannot be had for a cause of action for carrying plaintiff past his destination. Louisville, etc., R. Co. v. Renicker, 8 Ind. A. 404, 35 NE 1047. (2) Where a petition alleges that plaintiff was injured by being thrown out of the door and on the ground by a collision, he cannot recover by showing that he had reasonable cause to apprehend a collision, and that, believing the danger to be imminent, he jumped from the train and was injured, where such facts were not pleaded, since they are inconsistent with the specific negligence averred. Chitty v. St.

2

3

grounds of defense. The theory on which a complaint against a carrier proceeds must be gathered from the general scope of the pleading and not from detached allegations, or from facts subsequently disclosed by the evidence; and statements of facts merely as inducement or as steps leading up to the injury counted on will not, for the purpose of restricting plaintiff's measure of damages, be construed as the statement of the cause of action on which a recovery is sought.5 The gist of such an action for personal injuries received by a passenger is generally simple negligence, and recovery cannot

Louis, etc., R. Co., 148 Mo. 64, 49 SW 868. (3) Where the cause of action alleged is negligence on the part of the carrier in running a train over a track which had been underminded by a flood, a recovery cannot be had for defects in the roadbed or in the ties or materials used on the road. Ely v. St. Louis, etc., R. Co., 77 Mo. 34. (4) A declaration charging only negligent operation of a car does not authorize recovery for mere negligence in using a defectively equipped car. Lemay V. Springfield St. R. Co., 210 Mass. 63, 96 NE 79, 37 LRANS 43. (5) Where plaintiff relies solely on defendant's alleged negligence in suddenly stopping a train with unusual violence, which was not negligent, but properly done to avoid a collision, he cannot recover for other or different causes of negligence, or on the theory of res ipsa loquitur. Todd v. Missouri Pac. R. Co.. 126 Mo. A. 684, 105 SW 671. (6) Where the negligence alleged is in stopping a street car and starting it while the passenger was alighting, plaintiff cannot recover if the car did not stop until after she fell. McGrane v. Nassau Electric R. Co., 134 App. Div. 257, 118 NYS 896. (7) Where the negligence alleged is in failing to stop the train at a station where plaintiff was to change cars to allow her to get off, and in suddenly and carelessly accelerating the speed of the train while she was getting off there, plaintiff cannot recover for the failure of the company to show her the safe way to go from one train to another at said station, or from any train to the station, or from the station to any train. Moss v. North Carolina R. Co., 122 N. C. 889, 29 SE 410. (8) Under an allegation of negligence in that the car was suddenly started as he was attempting to get on, plaintiff cannot recover because of any negligence in not stopping it thereafter. Christie V. Galveston City R. Co., (Tex. Civ. A.) 39 SW 638. (9) Where the cause of action alleged is that defendant failed to stop its train long enough to permit plaintiff to alight with safety, a recovery cannot be had on account of the failure of the company to keep the platform lighted. Price v. St. Louis, etc., R. Co., 72 Mo. 414. (10) Where the cause of action is alleged to be the overturning of a stagecoach through the negligence of the driver, a recovery cannot be had if the stage was overturned from the coming out of a linchpin. Mayor v. Humphries, 1 C. & P. 251, 12 ECL 151. (11) In an action to recover for injuries received by plaintiff while alighting from a street car, although the petition avers that the car was stopped for the purpose of allowing plaintiff to get off, he may recover on the hypothesis that it was stopped under such circumstances as to justify him in believing that it was stopped for such purpose. Belt Electric Line Co. v. Tomlin, 40 SW 925, 19 KyL 433. (12) Where, in an action for injuries caused by the premature starting of a street car, plaintiff's petition did not aver that a signal was given to stop the car on the west side of a cross street, nor that that was the regular stopping place, but charged only that plaintiff sig

naled the operating employees to stop the car at the intersection of certain streets, "a regular stopping place for the discharge of passengers," and that the car stopped there, plaintiff was not committed to the theory that the west side of the street intersection was the regular stopping place for the discharge of east-bound passengers, nor was she required to prove the same. Groshong v. United R. Co., 142 Mo. A. 718. 121 SW 1084.

[b] Where specific injuries are alleged, recovery cannot be had for injuries not so specified. Stevens V. Kansas City El. R. Co., 126 Mo. A. 619, 105 SW 26. [c]

Elevator case.-A complaint for injury to an elevator passenger which alleges that defendant was negligent in failing properly to operate the elevator is sufficient to support a recovery for negligence in permitting the elevator to be overcrowded. Champagne v. A. Hamburger, 169 Cal. 683. 147 P 954.

2. Lawrence v. Kaul Lumber Co., 171 Ala. 300, 55 S 111; Mirrielees v. Wabash R. Co., 163 Mo. 470, 63 SW 718.

count

[a] Thus, where an action for injuries to a person riding on a freight train was dismissed as to a basing his right on the theory that he was a passenger, and the case was submitted on instructions asked by both plaintiff and defendant, which declared that plaintiff was a trespasser, a defense that defendant was not liable, because of plaintiff's fraud in representing himself to be the owner of a mileage ticket issued to another, which he induced the conductor to accept in payment of his fare, was thereby eliminated from the case. Mirrielees v. Wabash R. Co., 163 Mo. 470, 63 SW 718.

3. Citizens' St. R. Co. v. Willoeby, 134 Ind. 563. 33 NE 627.

V.

4. International, etc.. R. Co. Williams, (Tex.) 183 SW 1185; Norton v. Galveston, etc., R. Co., (Tex. Civ. A.) 108 SW 1044.

5. Denver, etc., Rapid Transit Co. v. Dwyer, 20 Colo. 132, 36 P 1106; Forrester v. Metropolitan St. R. Co., 116 Mo. A. 37. 91 SW 401; St. Louis Southwestern R. Co. v. Parks, (Tex. Civ. A.) 73 SW 439.

[a] Contract of carriage.-When the action against a carrier for injuries to a passenger sounds in tort, the allegation of the contract of carriage is regarded as a mere inducement to the action to show the right to sue as passenger. Canaday V. United R. Co., 134 Mo. A. 282, 114 SW 88.

6. Butler v. Wilmington City R. Co., 25 Del. 262. 78 A 871; Louisville, etc.. R. Co. v. Wood, 113 Ind. 544, 14 NE 572, 16 NE 197; Cramer v. Springfield Tract. Co., 112 Mo. A. 350, 87 SW 24; Gulf, etc., R. Co. v. Redeker, 45 Tex. Civ. A. 312, 100 SW 362.

[a] A delay of a train for three hours, without reasonable excuse and without notice to a passenger, under such conditions as result in her injury, is not a breach of the contract of carriage, but negligence amounting to a tort. Gulf, etc., R. Co. v. Redeker, 45 Tex. Civ. A. 312, 100 SW 362.

[b] A charge of willfulness will be ignored (1) and treated as mere surplusage in a petition wherein

both willfulness and negligence are alleged as grounds for recovery. Cramer v. Springfield Tract. Co., 112 Mo. A. 350, 87 SW 24. (2) In an action for injuries alleged to have been occasioned by the "negligence, careless, willful, heedless and improper acts of said conductor" in pulling plaintiff from a car while she was attempting to alight, the complaint shows a case of negligence and not a willful injury, notwithstanding the use of the word "willful." Louisville, etc.. R. Co. v. Wood, 113 Ind. 544, 14 NE 572, 16 NE 197.

7. Newberry v. Atkinson, 184 Ala. 567, 64 S 46: Louisville, etc., R. Co. v. Perkins, 152 Ala. 133, 44 S 602; Fitzgibbon v. Chicago, etc., R. Co., 108 Iowa 614, 79 NW 477.

8. Highland Ave., etc.. R. Co. v. Winn. 93 Ala. 306, 9 S 509; Indiana, etc.. R. Co. v. Burdge, 94 Ind. 46; Way v. Chicago, etc., R. Co.. 73 Towa 463, 35 NW 525; San Antonio Traction Co. v. Lambkin, (Tex. Civ. A.) 99 SW 574.

[a] Where gross negligence is charged, an allegation of the relation of passenger and carrier is not material, although a recovery cannot be had on proof of that slight degree of negligence which would have been sufficient to charge defendant had the relation existed. Way v. Chicago, etc., R. Co., 73 Iowa 463, 35 NW 525.

[b] The gist of an action against a street car company for insults offered by a conductor to a female passenger is the wrongful act of the conductor independent of negligence. San Antonio Tract. Co. v. Lambkin. (Tex. Civ. A.) 99 SW 574.

9. Kelley v. Grand Trunk Western R. Co., 46 Ind. A. 697, 93 NE 616; Smith v. Chamberlain, 38 S. C. 529. 17 SE 371, 19 LRA 710. See also infra § 1422.

10. Patterson V. Jacksonville Tract. Co., 213 Fed. 289, 130 CCA 13; Pell v. Joliet, etc., R. Co., 238 111. 510 87 NE 542 [aff 142 Ill. A. 362]: Eckels v. Bryant, 137 Ill. A. 234; Hill v. Chicago City R. Co., 126 I. A. 152.

[a] Under Rule No. 71 of the Rules of the Florida Circuit Court in common-law actions, a plea of not guilty to a declaration for injuries in a collision between two street cars, alleged to be owned and operated by defendant, does not deny that defendant owned and operated the cars. Patterson v. Jacksonville Tract. Co., 213 Fed. 289, 130 CCA 13.

11. See generally Pleading [31 Cyc 674].

12. U. S.-Boston, etc., R. Co. v. Miller, 203 Fed. 968, 122 CCA 270; Lydon v. Robert Smith Ale Brewing Co., 133 Fed. 830.

Ala.-Birmingham R., etc., Co. v. Stanfield, 161 Ala. 488, 50 S 51; Birmingham R., etc., Co. v. Sawyer, 156 Ala. 199, 47 S 67, 19 LRANS 717; Birmingham R., etc., Co. v. Haggard, 155 Ala. 343, 46 S 519.

Del.-Freeman v. Wilmington, etc., Tract. Co., 26 Del. 107, 80 A 1001; Braunstein v. Peoples R. Co., 25 Del. 55, 78 A 609.

Ind. Southern R. Co. v. Crone, 51 Ind. A. 300, 99 NE 762.

Kan.-Altwein v. Metropolitan St. R. Co., 86 Kan. 220, 120 P 550. Md.-Stewart Taxi-Service Getz, 118 Md. 171, 84 A 338.

Co. v.

13

541.

Mo.-Kennedy v. Metropolitan St. R. Co., 128 Mo. A. 297, 107 SW 16.

N. Y.-Coleman v. Metropolitan St. R. Co., 82 App. Div. 435, 81 NYS 836. Tex. Haralson V. San Antonio Tract. Co., 53 Tex. Civ. A. 253, 115 SW 876.

Wis.-Hopkins v. Chicago, etc., R. Co., 128 Wis. 403, 107 NW 330.

[a] Preponderance of evidence.A passenger suing a carrier for injuries must show by preponderance of the evidence that the negligence causing the accident was the negligence described in the declaration. Reiss V. Wilmington City R. Co., (Del.) 67 A 153; Waller v. Wilmington City R. Co., 21 Del. 374, 61 A 874. [b] Assault.-Under an averment in a pleading that "defendant [carrier], by its employés, servants, and agents, assaulted plaintiff," it is necessary to prove, not only that an agent, employee, or servant committed such assault, but, further, that such person was in the line of his duty. Southern R. Co. v. Crone, 51 Ind. A. 300, 99 NE 762.

[c] Ownership of taxicab.-A judgment against a taxi company for personal injury to a passenger in a collision with a street car cannot be sustained, in the absence of proof of ownership of the taxicab or its operation by the company's employees. Stewart Taxi-Service Co. v. Getz, 118 Md. 171, 84 A 338.

[d] Relation of passenger.-The allegation that plaintiff was a passenger on defendant's car at the time he was injured is a material allegation, and must be proved. Birmingham R., etc., Co. v. Sawyer, 156 Ala. 199, 47 S 67, 19 LRANS 717.

[e] Date of injuries.-Where the complaint in an action for the death of a passenger fixes, under a videlicet, the date of the injuries, plaintiff is not held to proof as to the exact day. Central of Georgia R. Co. v. Teasley, 187 Ala. 610, 65 S 981.

[f] Manner of injury.-Plaintiff must show that he was injured in the manner alleged in the declaration. Braunstein v. Peoples R. Co., 25 Del. 55, 78 A 609; Altwein v. Metropolitan St. R. Co., 86 Kan. 220, 120 P 550 (holding that, where the petition alleges that plaintiff was riding in defendant's street car, that the car came to a standstill at a crossing, that as she was alighting the car was negligently and violently started forward with such force as to throw her down, the evidence, to sustain the action, must show that the injury occurred substantially as alleged, and that the negligent act of defendant's employee was the proximate cause of the injury).

13. Southern R. Co. v. Burgess, 143 Ala. 364, 42 S 35; Terre Haute, etc., R. Co. v. Sheeks, 155 Ind. 74, 56 NE 434.

[a] Time and manner of leaving train. To entitle a carrier, sued for injuries to a passenger while alighting from a freight train, to a verdict on a plea that the passenger negligently attempted to leave the car in an improper manner and at an improper time and place, and as a proximate result thereof was injured, it must be shown that the passenger attempted to leave the train in an improper manner and at an improper time and place. Southern R. Co. v. Burgess, 143 Ala. 364, 42 S 35.

[b] Defects in switch. Where plaintiff alleged her injuries to be caused by the derailment of a train because of a defective switch, the specification in the complaint of the defects in the switch, alleged as

negligence, did not relieve defendant from the necessity of showing that it was properly constructed in all respects. Terre Haute, etc., R. Co. v. Sheeks, 155 Ind. 74, 56 NE 434.

14. Barry v. Boston, etc., R. Co. 172 Mass. 109, 61 NE 518; Fine v. Interurban St. R. Co., 45 Misc. 587, 91 NYS 43.

[a] Illustrations.—(1) A complaint for injuries received in attempting to step from a train, alleging that at or near a certain station the brakeman called out in the car in which plaintiff was seated the name of the station, and thereupon the car stopped. and plaintiff attempted to alight, and was thrown to the ground by the starting of the train, does not require plaintiff to show that the train had come to a stop "at a place designed for passengers." Barry v. Boston, etc., R. Co., 172 Mass. 109, 51 NE 518. (2) A complaint alleging that plaintiff was injured by a fall from defendant's street car while in the act of boarding it, caused by its being started before he had been given a reasonable opportunity to place himself in a position of security, does not require proof that it was started with more than ordinary violence. Fine v. Interurban St. R. Co., 45 Misc. 587, 91 NYS 43.

15. Ala. Southern R. Co. v. Lee, 167 Ala. 268, 52 S 648.

Ill. Chicago Union Tract. Co. V. Brethauer, 223 Ill. 521, 79 NE 287, 114 AmSR 352 [aff 125 III. A. 204].

Ind.-Pittsburgh, etc., R. Co. V. Higgs, 165 Ind. 694, 76 NE 299, 4 LRANS 1081; Louisville, etc., Tract. Co. v. Snead, (A.) 93 NE 177; Citizens' St. R. Co. v. Huffer, 26 Ind. A. 575, 60 NE 316; Terre Haute Electric R. Co. v. Lauer, 21 Ind. A. 466, 52 NE 703.

Ky.-Chesapeake, etc., R. Co. V. Hammer, 66 SW 375, 23 KyL 1846. Mo.-Millar v. St. Louis Transit Co., 215 Mo. 607, 114 SW 945.

N. Y.-Morrow v. Brooklyn Heights R. Co., 119 App. Div. 22, 103 NYS 998. N. C.--McNeill v. Durham, etc., R. Co., 130 N. C. 256, 41 SE 383.

S. C.-Sutton v. Southern R. Co., 82 S. C. 345, 64 SE 401.

Tex. Missouri, etc., R. Co. V. Stone, 58 Tex. Civ. A. 480, 125 SW 587; El Paso Electric R. Co. v. Harry, 37 Tex. Civ. A. 90, 83 SW 735; Houston, etc., R. Co. v. Rowell, (Čiv. A.) 45 SW 763 [aff 92 Tex. 147, 46 SW 630].

Wis.-Wolf v. Chicago, etc., R. Co., 131 Wis. 335, 111 NW 514.

[a] Where plaintiff makes out a prima facie case on proof of facts alleged in the complaint, he cannot be defeated because he fails to prove other allegations not essential to his cause of action. Sutton v. Southern R. Co., 82 S. C. 345, 64 SE 401.

an

[b] Illustrations.-(1) In a female passenger's action against a railroad for damages through defendant's employees permitting other passengers to use offensive language, in effort to compel plaintiff's colored servant to leave the car, an allegation that plaintiff's condition was so feeble as to be open to ordinary observation only affected the gravity of defendant's negligence, and failure to prove the same was not fatal to the action. Southern R. Co. v. Lee, 167 Ala. 268, 52 S 648. (2) Where the complaint alleges that plaintiff passenger was injured by the negligence of defendant, which consisted in the violent jerking of defendant's cars, caused by the sudden starting or stopping of the train, it is sufficient to prove the jerking, and it is immaterial whether it was done by starting or stopping the train, as

alleged. Citizens St. R. Co. v. Huffer, 26 Ind. A. 575, 60 NE 316; Houston, etc., R. Co. v. Rowell, (Tex. Civ. A.) 45 SW 763 [aff 92 Tex. 147, 46 SW 630]. (3) In an action for injury to a passenger on a street car, due to the starting of the car before she had reached a place of safety, it was not essential to plead or prove the manner in which the car was started, and failure to prove an allegation that the car started with a jerk was not fatal to the action. Morrow v. Brooklyn Heights R. Co., 119 App. Div. 22, 103 NYS 998. (4) Where a passenger seated in a standing coach was injured by the violent and negligent movement thereof, the means by which it was moved was immaterial, and the allegation in the petition in an action for the injuries that the coach was jarred by some other car

or

locomotive coming into violent collision with it need not be proved. Missouri, etc., R. Co. v. Stone, 58 Tex. Civ. A. 480. 125 SW 857. (5) Under an allegation that plaintiff rode on the platform of a street car at the request of the conductor, and was injured through the negligence of the company's employees, plaintiff may recover without proving that the conductor requested him to ride on the platform. Terre Haute Electric R. Co. v. Lauer, 21 Ind. A. 466, 52 NE 703. (6) Where, in an action by a passenger for injuries sustained by reason of the derailment of the train, defendant admitted the derailment and the establishment of a prima facie case of negligence, the allegations of the complaint as to the manner and cause of the accident became immaterial, defendant being liable unless able to show that the derailment was not caused by any act of negligence on its part. McNeill v. Durham, etc., R. Co., 130 N. C. 256, 41 SE 383.

[c] Where the gist of the action is that plaintiff was negligently thrown from a car and injured, he is not required to prove specific averments as to the manner in which the car was operated. Louisville, etc.. Tract. Co. v. Snead, (Ind. A.) 93 NE 177.

[d] Plaintiff's injuries.-A general allegation that plaintiff was otherwise greatly hurt and wounded, when coupled with specific allegations of injuries, will be treated as surplusage and ignored. Chesapeake, etc., R. Co. v. Hammer, 66 SW 375, 23 KyL 1846.

16. St. Louis Southwestern R. Co. v. Parks, (Tex. Civ. A.) 73 SW 439. 17. Ala.-Central of Georgia R. Co. v. Geopp. 153 Ala. 108, 45 S 65.

Ind.-Southern R. Co. v. Adams, 52 Ind. A. 322, 100 NE 773; Pittsburgh, etc., R. Co. v. Gray, (A.) 59 NE 1000.

Iowa.-Garvik v. Burlington, etc.. R. Co., 124 Iowa 691, 100 NW 498; Moore v. Des Moines, etc., R. Co., 69 Iowa 491, 30 NW 51.

Mass.-Weil v. Boston El. R. Co., 218 Mass. 397, 105 NE 983.

Mich.-Whipple v. Michigan Cent. R. Co., 143 Mich. 41, 106 NW 690; Stoody v. Detroit, etc., R. Co., 124 Mich. 420, 83 NW 26.

Mo.-Zwick v. Swinney, 178 Mo. A. 142, 165 SW 1124; Spaulding v. Metropolitan St. R. Co., 129 Mo. A. 607. 107 SW 1049; Foland v. Southwest Missouri Electric R. Co., 119 Mo. A. 284, 95 SW 958; Hensler v. Stix, 113 Mo. A. 162, 88 SW 108.

Or.-Graham v. Corvallis, etc., R. Co., 71 Or. 477, 142 P 774.

Tex.-Galveston, etc.. R. Co. V. Watts, (Civ. A.) 182 SW 412: Missouri, etc., R. Co. v. Swift, (Civ. A.) 128 SW 450.

Vt.-Parker v. Boston, etc., R. Co..