137 SW 1006. [a] Exemplary damages held excessive.-Louisville Southern R. Co., v. Minogue, 90 Ky. 369, 14 SW 357, 12 KyL 378, 29 AmSR 378 (holding that, where a female passenger's injuries consist of bruises, nervous shock, and a partial paralysis or insensibility in one leg from the knee down, the medical testimony being conflicting and unsatisfactory regarding the permanency of the injuries, a verdict for ten thousand dollars is excessive, whether it is intended to be compensatory merely or to include exemplary damages). (3) terms ordered him to get up from his seat and retire to the rear of the car, at the same time seizing him by the arm, a verdict for four thousand three hundred and seventy-five dollars damages will not be set aside. East Tennessee, etc., R. Co. v. Fleetwood, 90 Ga. 23, 15 SE 778. (3) Where a passenger exhibited at the customary entrance of a coach a ticket which entitled him to transportation on board the train on which he was by virtue of the ticket entitled to travel, but was by the carrier's porter repulsed insolently, denied admission, insultingly, and without explanation, and from the conduct of the porter was threatened with an immediate assault, a verdict for two thousand five hundred dollars exemplary damages was not excessive. Yazoo, etc., R. Co. v. Mattingly, (Miss.) 37 S 708. (4) Where a conductor of a street car declined to accept a transfer check from a passenger and demanded fare and forcibly resisted his efforts to leave the car, detaining him while the car journeyed several miles, and threatened to take him to a police station, although he explained the conditions under which he received the check from a conductor on another line, a verdict of twenty-five dollars compensatory damages and five hundred dollars punitive damages was not so excessive as to warrant the court on appeal in interfering with the refusal of the trial court to set it aside. Mueller v. St. Louis Transit Co., 108 Mo. A. 325, 83 SW 270. 73. Hanson v. Urbana, etc., St. R. Co., 75 Ill. A. 474; Tooker v. Brooklyn Heights R. Co., 80 App. Div. 371, 80 NYS 969. See generally Damages [13 Cyc 135]. [b] Exemplary damages held not excessive.-(1) Four hundred and fifty dollars. Cathey v. St. Louis, etc., R. Co., 149 Mo. A. 134, 130 SW 130 (where a brakeman wrongfully and maliciously assaulted a passenger, kicking him in the mouth and cursing him). (2) Five hundred dollars. Coal Belt Electric R. Co. v. Young, 126 Ill. A. 651 (for assaulting and humiliating an aged man). Seven hundred and fifty dollars. McNamara v. St. Louis Transit Co., 182 Mo. 676, 81 SW 880, 66 LRA 486 (where a street car conductor kicked a messenger boy thirteen years old over the heart as he was attempting to board defendant's street car as a passenger, and it appeared that the kick produced a bruise and caused plaintiff severe pain). (4) One thousand dollars. Lexington R. Co. v. Johnson, (Ky.) 122 SW 830 (where street car men knowingly operated on a steep incline a car with a useless brake, and relied entirely on reverse electric current, and a collision occurred because the current was cut off while the car was descending the incline). (5) Two thousand dollars. Pine Bluff, etc., R. Co. v. Washington, 116 Ark. 179, 172 SW 872 (for malicious act of brakeman in shooting passenger). (6) Five hundred dollars actual damages and two thousand five hundred dollars punitive damages. Hedge v. St. Louis, etc., R. Co., 164 Mo. A. 291, 145 SW 115 (for an unwarranted assault on a person at a station to purchase a ticket). (7) Five thousand dollars compensatory damages and two thousand dollars exemplary damages. Neuer v. Metropolitan St. R. Co., 143 Mo. A. 402, 127 SW 669 (where a passenger assaulted by a conductor with a switch iron received a scalp wound about three inches long that laid bare his skull, and his skull was fractured resulting in a blood tumor in the eye, in the loss of his memory, and a change of his disposition, and his injuries were permanent, and the assault was vicious and unprovoked). (8) Ten thousand dollars. Montgomery, etc., R. Co. v. Boring, 51 Ga. 582 (for [a] In Massachusetts Rev. L. c. 112 broken leg by reason of gross negli- § 44, providing for notice to a street gence in allowing passenger to alight | railway company as to the time, at dangerous place). [c] Insult and indignity.-(1) Where a passenger has been subjected to indignity, his feelings outraged, and he has been degraded in the eyes of his fellow passengers by being assailed with gross and vituperative language and even blows, by à conductor, exemplary damages are allowable, and a verdict for one thousand dollars is not excessive. Atlanta, etc., R. Co. v. Condor, 75 Ga. 51. (2) Where a conductor applied profane epithets to a passenger, threatened to kill him, spat tobacco juice in his face, and in abusive 74. Cross references: Abatement of action for injuries to passenger see Abatement and Revival 374. Amendment of pleading as affecting limitations of actions for personal injuries see Limitation of Actions [25 Cyc 1305]. Death of passenger, action for see Death [13 Cyc 310 et seq]. Limitations of actions see Limitations of Actions [25 Cyc 963]. Recovery for personal injuries in action for breach of contract of transportation see supra § 1283. 75. See Actions § 151. 76. Conditions precedent generally see Actions §§ 72-83. 77. See statutory provisions. And see Thorson v. Groton, etc., R. Co., 85 Conn. 11, 81 A 1024 (construing Gen. St. [1902] § 1130); Sawyer v. El Paso, etc., R. Co.. 49 Tex. Čiv. A. 106, 108 SW 718. See generally Actions § 73. See also Negligence [29 Cyc 5641. place, and cause of the injury, as a condition to liability, does not apply where the place of the accident is on its private property. Joslyn v. Milford, etc., R. Co., 184 Mass. 65, 67 NE 866. [b] The purpose of a statute requiring written notice containing a general description of the injury and of the time, place, and cause of its occurrence, as a condition precedent to the maintenance of an action against a railroad company, is enable the company to ascertain the facts within a reasonable time after the occurrence, and a notice which to is sufficient for that purpose is good. Thorson v. Groton, etc., R. Co., 85 Conn. 11, 81 A 1024. [c] Sufficiency of notice.-A notice of injury to a trolley car passenger, which alleges that, while plaintiff was a passenger on a car which left N for G at about ten forty-five P. M. on a designated date, she was struck on the head by the falling of one of the transoms of the car, bruising and injuring her head, brain, and nervous system, and that the injuries were inflicted on plaintiff while she was on the car shortly after the taking of the first fare and before taking the second, sufficiently gives a general description of the injury and of the time, place, and cause of its occurrence, within such a statute. Thorson v. Groton, etc., Co., 85 Conn. 11, 81 A 1024. [d] Service of notice.-Where the statute requires that such notice shall be served on the one claimed to be responsible, in the manner required for the service of summons in courts of record, service on the claim agent of a railroad company is insufficient. Smith v. Chicago, etc., R. Co., 124 Wis. 120, 102 NW 336 (construing Rev. St. [1898] § 4222 subd 5; and holding further that, where the claim agent corresponded with the injured passenger about the claim, but with nothing to indicate that no other notice would be required, and it did not appear that the injured passenger was misled, the company was not estopped to deny a waiver of any other notice). 78. Pittsburgh, etc.. R. Co. V. Brown, 178 Ind. 11, 97 NE 145, 98 NE 625; Barber v. Chicago, etc., R. Co., 86 Kan. 277, 120 P 359; James v. Chicago, etc., R. Co., 81 Kan. 23, 27, 105 P 40. [a] Thus, where a contract for the shipment of cattle provided for transportation for the caretaker in charge of them and the contract was signed after the cattle were loaded, and by the time it was signed the train was in motion, and the conductor refused to stop the train, and the caretaker was injured while trying to get aboard the caboose, the contract. which required notice of injury to person or property, as a condition precedent to an action for damages, was operative at the time of the injury. Barber v. Chicago, etc.. R. Co., 86 Kan. 277, 120 P 359. [b] Stipulation as to injuries to property not applicable to passengers.-Where a shipper of household goods and of live stock, billed under a live stock bill of lading, which contains a condition that a claim in writing shall be made within five days from the accrual of damages. was killed while accompanying the shipment, it was not a condition precedent to an action by the representative of the shipper that the notice provided by the bill of lading should have been given, since that notice referred only to claims for injuries to the live stock or to the personal property. Pittsburgh, etc.. R. Co. v. Brown, 178 Ind. 11, 97 NE 145, 98 NE 625. 79. Koster v. Atchison, etc., R. Co., 95 Kan. 109, 147 P 798. [a] Shipper riding on pass.-A provision of a contract for transportation of live stock, limiting the time to sue for damages, applies to an action for injuries to the shipper, received while riding on a pass in within which suit must be brought does not accrue until notice is given;80 but the carrier may waive the provision as to the time for suit.81 It has been held that, in a passenger's action sounding in tort, any stipulation in the transportation contract limiting the time within which suit must be brought is inapplicable.82 [§ 1405] 3. Jurisdiction and Venue.83 An action by a passenger for personal injuries due to the negligence of the carrier is transitory in its nature and may be brought in the state where the cause of action arose, that is, where the injuries were incurred, although the contract for carriage was made in another state;85 or it may be brought in the 84 dorsed on the contract and issued as part of its consideration. Koster v. Atchison, etc., R. Co., 95 Kan. 109, 147 P 798. 80. James v. Chicago, etc., R. Co., 81 Kan. 23, 27, 105 P 40. 81. St. Louis, etc., R. Co. v. Dysart, 62 Tex. Civ. A. 7, 130 SW 1047. [a] Attempt to settle suit.-A provision in a contract of shipment requiring suits for injuries to the person accompanying the same to be brought within a specified time was waived where the carrier attempted to settle a suit for such injuries brought after the expiration of the time. St. Louis, etc., R. Co. v. Dysart, 62 Tex. Civ. A. 7, 130 SW 1047. 82. Martin v. Chicago, etc., R. Co., (Okl.) 148 P 711. 83. Cross references: Action for breach of contract see supra § 1284. Action for death see Death [13 Cyc 338]. Action for wrongful ejection see supra 1214. Federal courts see Courts [11 Cyc 849]. Injury occurring in foreign state see Courts [11 Cyc 665]. Municipal courts see Courts [11 Cyc 787]. Removal of cause to federal court see Removal of Causes [34 Cyc 1211]. Venue generally see Venue [40 Cyc 1]. 84. Baltimore, etc., R. Co. v. Reed, 223 Fed. 689, 139 CCA 192; Parris v. Atlanta, etc., R. Co., 128 Ga. 434, 57 SE 692; Indiana, etc., R. Co. v. Masterson, 16 Ind. A. 323. 44 NE 1004. [a] Rule applied. Where a petition alleged that plaintiff attempted to board a passenger train of defendant company in the state of Tennessee, and that the train started while he was still on the steps, and before he had a reasonable opportunity to enter the car, and while he was trying to mount the steps, but before he could succeed, and that, after the train had passed into the state of Georgia a sudden swing caused another passenger to shove him so that petitioner lost his balance and fell from the train, a superior court of Georgia had jurisdiction, no cause of action having arisen until the train was in Georgia. Parris v. Atlanta, etc., R. Co.. 128 Ga. 434, 57 SE 692. 85. Indiana, etc., R. Co. v. Masterson. 16 Ind. A. 323, 44 NE 1004. 86. Crosby v. Seaboard Air Line R. Co., 81 S. C. 24, 61 SE 1064; Mississippi, etc., R. Co. v. Ayres, 16 Lea (Tenn.) 725. [a] Where a railroad is chartered in two states, and has but one set of officers, and a passenger is injured in one state while traveling on a single ticket, and sues for damages in the other state, it is immaterial whether the corporation is sued as a corporation of one state or of the other. Mississippi, etc., R. Co. v. Ayres, 16 Lea (Tenn.) 725. R. 87. Chesapeake, etc., Co. V. Cowherd, 15 KyL 160. 88. Chesapeake, etc.. R. Co. V. Cowherd, 15 KyL 160. [a] In Kentucky Civ. Code Prac. § 73 fixes the county in which an ac 87 state where defendant is served, although the injury arose in another state, unless the laws of the latter state are contrary thereto.86 As between different counties, the action may be brought in any county in which process is served on defendant, unless there is a statutory provision localizing the action.88 The action may be brought, under various statutes, in the county where the injury occurred or the cause of action arose, or where defendant resides or has its principal office or place of business, or where plaintiff resides," provided, under some statutes, it is a county through which the road runs.9 92 89 90 Convenience of witnesses. It has been held that tion against a common carrier for an injury to a passenger must be brought; and this statute applies | even where a carrier is a nonresident and the injury is received in another state; and, although by reason of the nonexistence of any of the localizing facts there may be no forum in which the injured party can assert his right, the courts are powerless to supply the omission. Chesapeake, etc., R. Co. v. Cowherd, 15 KyL 160. [b] Conditions affecting transitory character of action. Where a statute localizes an action by a passenger for injuries sustained by reason of the negligence of the carrier, the fact that none of the conditions exist in a particular case, which would authorize the action to be brought in any of the counties fixed by the statute. does not make the action transitory, so as to authorize plaintiff to sue in any county in which process may be served. Chesapeake, etc., R. Co. v. Cowherd, 15 KyL 160. 89. Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805, 56 SE 1006, 9 LRANS 769, 9 AnnCas 553; Wilson v. Louisville, etc., R. Co., 112 SW 585, 33 KyL 985 (under Civ. Code Prac.73); Louisville, etc., R. Co. v. Sanders, (Ky.) 92 SW 937; N. N. & M. V. Co. v. Boles, 13 KyL 208; Virginia, etc., R. Co. v. Hollingsworth, 107 Va. 359, 58 SE 572. [a] In Kentucky under Civ. Code Prac. $$ 73 and 83, an action for a delay in a shipment of property cannot be joined with an action for personal injuries to the person accompanying the shipment, in the county where the delay occurred, where the personal injuries were sustained in another county. Wilson v. Louisville, etc., R. Co., 112 SW 585, 33 KyL 985. [a] The words "residence" or "reside" mean, with reference to a corporation, its chief office or place of business; and hence an action by a nonresident against a railroad corporation, for personal injuries received in another state, must be brought in the county in which the chief officer of defendant resides, or in the county in which it has its chief office. Eichhorn v. Louisville, etc., R. Co., 112 Ky. 338, 65 SW 797, 23 KyL 1640. [b] Action against two or more companies.-In Texas under L. (1889) p 214 c 125, as amended by L. (1905) p 29 c 25, providing that when any passenger, freight, etc., has been transported by two or more railroads, suit for damages may be brought against all, in any county in which either operates, or does business, or has any agent, fixes the venue of suits and authorizes the joinder in one action of all roads participating in the transportation, etc., and a passenger having a through ticket over two roads may, for any injuries received during transportation, sue both roads in the county in which the initial road operated its road, maintained an office, and had an agent, and in which the contract for transportation was entered into by it as agent for the other road which afterward ratified it. Texas Cent. R. Co. v. Marrs, 100 Tex. 530, 101 SW 1177; Blanks v. Missouri, etc., R. Co., (Tex. Civ. A.) 116 SW 377 [aff 125 SW 312]. [c] Third person as joint trespasser.-Where an assault on a rail the conductor and a person not an employee of the company, the company and such person being joint trespassers, the court of the county of such person's residence had jurisdiction, under Const. art 6 § 16 par 4 (Civ. Code § 5872), providing that suits against joint trespassers residing in different counties may be tried in either county; and this, although such county was not the county in which the cause of action originated, nor the county of the [b] Injuries in several counties.-road passenger was the joint act of Where plaintiff's petition showed that the car in which she was transported as a passenger over defendant's railroad was not heated, although the weather was extremely cold; that, in consequence of the failure of defendant's employees to heat the car, she contracted a severe illness, that she began her journey over the said railroad at Albany, in the county of Dougherty, and suffered as a result of the cold, "in a few moments after the train left Albany, and while in said county of Dough-residence of the railroad company. erty," a suit to recover damages for injuries which resulted from the exposure to the cold was properly brought in that county; and it was not error for the court to overrule a demurrer to the petition, based on the want of jurisdiction on the part of the city court of that county, although the harmful effects resulting from the failure to heat the car may have been increased by a continuation of the journey through other counties. Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805, 56 SE 1006, 9 LRANS 769. 9 AnnCas 553. 90. Central of Georgia R. Co. v. Brown, 113 Ga. 414, 38 SE 989. 84 AmSR 250; Wilson v. Louisville, etc., R. Co., 112 SW 585, 33 KyL 985 (under Civ. Code Prac. § 73): Louisville. etc., R. Co. v. Sanders. (Ky.) 92 SW Central of Georgia R. Co. v. Brown, 113 Ga. 414, 38 SE 989, 84 AmSR 250. 91. Louisville, etc., R. Co. v. Mitchell, 162 Ky. 253, 172 SW 527; Wilson v. Louisville, etc., R. Co., 112 SW 585, 33 KyL 985 (under Civ. Code Prac. § 73); Louisville. etc.. R. Co. v. Sanders, (Ky.) 92 SW 937; N. N. & M. V. Co. v. Boles, 13 KyL 208. [a] Where the passenger is killed, the venue of an action by his administrator is governed by the residence of the intestate, and not by the residence of the administrator. Illinois, etc., R. Co. V. Willis, 123 Ky. 636, 97 SW 21, 29 KyL 1187. 92. Wilson v. Louisville, etc., R. Co., 112 SW 585, 33 KyL 985 (under Civ. Code Prac. § 73); Chesapeake. the court may consider the convenience of employee witnesses in determining where the trial shall be held, although their convenience will be less considered than the convenience of witnesses who are not connected with the parties. 93 95 [1406] 4. Parties.94 Where a passenger is injured by the joint or concurrent acts of several joint tort-feasors, he may sue either of them, or he may join them in one action and recover against such as are shown by the evidence to be liable.9 Α nonjoinder of all persons liable therefor cannot be taken advantage of in such an action, but a recovery may be had against such as are shown to be liable, provided the action is brought in tort and not in contract.9 A purchaser of railroad property, under a decree of foreclosure providing that the purchaser shall take the property subject to all liabilities, may be joined as defendant in an action for personal injuries to, or death of, a passenger, 96 97 etc., R. Co. v. Cowherd, 15 KyL 160; N. N. & M. V. Co. v. Boles, 13 KyL 208. 93. Neeley V. Erie R. Co., 134 App. Div. 781, 119 NYS 953; Fowler v. Third Ave. R. Co., 55 Hun 610, 8 NYS 762. See generally Venue [40 Cyc 136]. W [a] Change of venue. In an action for personal injuries, an application by defendant for a change of venue from W to Y county, for the convenience of six witnesses, is properly denied where a trial in county will be more convenient for plaintiff, her husband, her servant, who was present at the accident, two physicians, and three other material witnesses. Fowler V. Third Ave. R. Co., 55 Hun 610, 8 NYS 762. 94. Generally see Parties [30 Cyc 1]. Cross references: Companies or persons liable generally see supra §§ 1312-1321. Joinder of husband in action for injuries to wife see Husband and Wife [21 Cyc 1558]. Receiver of railroad company as party defendant see Receivers [34 Cyc 427]. 95. U. S.-Atlantic, etc., R. Co. v. Laird, 58 Fed. 760, 7 CCA 489 [aff 164 U. S. 393, 17 SCt 120, 41 L. ed. 485]. Cal.-Rankin V. Central Pac. R. Co., 73 Cal. 93, 15 P 57; Tompkins v. Clay St. R. Co., 66 Cal. 163, 4 P 1165. D. C.-Washington, etc., R. Co. v. Hickey, 5 App. 436 [aff 166 U. S. 521, 17 SCt 661, 41 L. ed. 1101]. Ill. Wabash, etc., R. Co. v. Shacklet, 105 Ill. 364, 44 AmR 791; Frink v. Potter, 17 Ill. 406. Ind.-Lucas v. Pennsylvania Co., 120 Ind. 205, 21 NE 972, 16 AmSR 323; Pittsburgh, etc., R. Co. V. Spencer, 98 Ind. 186. Minn.-Flaherty V. Minneapolis. etc., R. Co., 39 Minn. 328, 40 NW 160, 12 AmSR 654, 1 LRA 680. Mont.-Emerson v. Butte Electric R. Co., 46 Mont. 454, 129 P 319. N. J.-Whalen v. Pennsylvania R. Co., 73 N. J. L. 192, 63 A 993. Pa-Bunting v. Hogsett, 139 Pa. 363, 21 A 31, 33, 34, 23 AmSR 192, 12 LRA 268. Tex.-Texas, etc., R. Co. v. Miller, 79 Tex. 78, 15 SW 264, 23 AmSR 308, 11 LRA 395 [app dism 154 U. S. 520 mem, 14 SCt 1154 mem, 38 L. ed. 1084 mem]. Eng.-Bretherton v. Wood, 3 B. & B. 54, 7 ECL 602, 129 Reprint 1203. Joint and several liability see supra § 1320. [a] Joinder of employee.-The superintendent of a street railroad company whose negligence caused an accident was properly joined with the company as defendant in a passenger's action for resulting injuries. Emerson v. Butte Electric R. Co., 46 Mont. 454, 129 P 319. 96. Ansell v. Waterhouse, 6 M. & S. 385, 105 Reprint 1286. occurring while the road is being operated by a receiver.98 Companies jointly operating their roads through a lessee may be joined in one action for injuries to a passenger over their lines, where the negligent acts are continuous and chargeable to the common agent of the lessee.99 Receivers appointed in a federal court for a defendant railroad company, after a suit is brought against the latter in a state court, need not be made parties to the suit.1 [1407] 5. Pleading-a. Declaration, Complaint, or Petition (1) In General. The declaration, complaint, or petition, in an action by a passenger against a common carrier for personal injuries sustained by reason of the carrier's negligence or wrong, is governed by the rules relating to such pleadings in civil actions generally, such as that it must be definite, and consistent in its allegations, and must contain sufficient allegations of all the facts that are necessary to state the cause 97. M'Call v. Forsyth. 4 Watts & S. (Pa.) 179; Ansell v. Waterhouse, 6 M. & S. 385, 105 Reprint_1286. 98. Denver, etc., R. Co. v. Gunning, 33 Colo. 280, 80 P 727. [a] Statute.-Under a statute which provides that any person may be made a defendant who has or claims an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein and a decree of foreclosure against the property of a railroad entered in the federal court, and the property sold thereunder, the foreclosure decree providing that the purchasers at a sale should take the property subject to all liabilities incurred by the receiver before the delivery of the possession to the extent that the assets in the hands of the receiver were insufficient for that purpose, the purchaser was properly joined as a defendant in an action for the death of a passenger while the railroad was being operated by the receiver. Denver, etc., R. Co. v. Gunning, 33 Colo. 280, 80 P 727. 99. Carleton v. Yadkin R. Co., 143 N. C. 43, 55 SE 429, 10 AnnCas 348. 1. St. Louis, etc., R. Co. v. Coy, 113 Ark. 265, 168 SW 1106. See generally Receivers [34 Cyc 427]. 2. Pleading generally see Pleading [31 Cyc 1]. In justice's court see Justices of the Peace [24 Cyc 555]. 3. See generally Pleading [31 Cyc 92]. And see Kordick v. Chicago, R. Co., 187 111. A. 74. [a] The same rules of pleading, as in cases where the relation of passenger and carrier is not present, are to be used in testing the sufficiency of a complaint, in an action by a passenger for injuries received while alighting from a street car, which action charges specific negligence. Birmingham R., etc., Co. v. O'Brien, 185 Ala. 617, 64 S 343. con [b] Particular complaints strued.-(1) A complaint, in an action for injuries to a passenger who was caught while hanging on the handrail of a car step between the car and a platform, which alleges that the train was rapidly approaching the platform, does not necessarily aver that the train was going at a rapid rate of speed, but may apply to the time between the passenger's mounting the step of the car and the approach of the train to the platform. Central of Georgia R. Co. v. Hingson, 186 Ala. 40, 65 S 45. (2) Where a complaint in an action against a railroad for the negligent killing of a passenger, alleged that, during the ten days before the accident occurred, a conductor repeatedly ran one portion of a train violently against the other without due regard to the lives and safety of passengers; that the conductor was warned that, unless more care was taken in bringing the por tions of the train together, some passenger would be seriously injured, and that, notwithstanding such warning, a portion of the train was run against another portion thereof, and plaintiff's deceased thereby sustained injuries resulting in her death, the allegations as to what occurred within ten days before the accident should not be stricken out as irrelevant, since they tended to show gross negligence. Stuckey V. Atlantic Coast Line R. Co., 60 S. C. 237, 38 SE 416, 85 AmSR 842. 4. Riley v. Wrightsville, etc.. R. Co., 133 Ga. 413, 65 SE 890, 24 LRA NS 379, 18 AnnCas 208; Douglas, etc., R. Co. v. Swindle, 2 Ga. A. 550, 59 SE 600; Ward v. Chicago, etc., R. Co., 165 Ill. 462, 46 NE 365; Southern R. Co. v. Roach. 38 Ind. A. 211, 78 NE 201; Rapid Transit R. Co. v. Smith, (Tex. Civ. A.) 82 SW 788 [rev on other grounds 98 Tex. 553, 86 SW 322]; Galveston, etc., R. Co. v. Contreras, 31 Tex. Civ. A. 489, 72 SW 1051. [a] Indefinite and uncertain allegations are subject to demurrer, and unless cured by amendment should be stricken out. Waldrup v. Central of Georgia R. Co., 127 Ga. 359, 56 SE 439. [b] Illustrations.—(1) An allegation in an action for compelling plaintiff to leave a railroad waiting room at a junction point that she had to wait "several hours" for a train was subject to special demurrer, no reason appearing why the time could not be more definitely alleged. Riley v. Wrightsville, etc., R. Co., 133 Ga. 413, 65 SE 890, 24 LRANS 379, 18 AnnCas 208. (2) An allegation that, by a collision between the car in which plaintiff was a passenger and cars kicked against it, the collision "bucked" or "doubled" the flat car between the two cars is not subject to a special demurrer, such words being words of such common usage that the knowledge of their meaning must be presumed. Douglas, etc., R. Co. v. Swindle, 2 Ga. A. 550, 59 SE 600. (3) A petition in an action for injuries to plaintiff's wife is sufficiently definite where it alleges a collision of defendant's cars, and that plaintiff's wife suffered a miscarriage as a result of "the jolt, jar, and shock" by such collision. Rapid Transit R. Co. v. Smith, (Tex. Civ. A.) 82 SW 788 [rev on other grounds 98 Tex. 553, 86 SW 322]. 5. St. Louis, etc.. R. Co. v. Pearce, 159 Ala. 141, 49 S 247; Lake Erie, etc., R. Co. v. Cotton, 45 Ind. A. 580, 91 NE 253; Shanahan v. St. Louis Transit Co., 109 Mo. A. 228, 83 SW 783. [a] Alleging inconsistent causes of accident.-In an action for injuries to a person accompanying a shipment of horses, inconsistency in averments of the complaint in alleging that the train left the track because rotten and defective ties had permitted the rails to spread, and of action on which plaintiff relies. It must allege facts showing the existence of a duty on the part of defendant to protect plaintiff from the injury of which he complains, defendant's failure to perform such duty, and the injury to plaintiff result that the breaking of the axle of a Ala.-Alabama City, etc., R. Co. v. Colo.-Fox v. Denver City Tramway Co., 57 Colo. 511, 143 P 278. Fla. Warfield v. Hepburn, 62 Fla. 409, 418, 57 S 618. Ga. Bailey v. Georgia, etc., R. Co., 144 Ga. 139, 86 SE 326; Georgia R., etc., Co. v. Rives, 137 Ga. 376, 73 SE 645, 38 LRANS 564; Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805, 56 SE 1006, 9 LRANS 769,9 AnnCas 553; Primus V. Macon R., etc., Co., 126 Ga. 667, 55 SE 924; Atlantic Coast Line R. Co. v. Adeeb, 15 Ga. A. 842, 84 SE 316. Ill.-O'Hern v. Illinois Cent. Electric R. Co., 190 Ill. A. 502. Ind.-Indiana Union Tract. Co. v. Swafford, 179 Ind. 279, 100 NE 840; Lake Erie, etc., R. Co. v. Huffman, 177 Ind. 126, 97 NE 434, AnnCas1914C 1272; Pittsburgh, etc., R. Co. V. Schepman, 171 Ind. 71, 84 NE 988 [rev (A.) 82 NE 998]; Indiana Union Tract. Co. v. Bales, 58 Ind. A. 92, 107 NE 682. Ky.-Dailey V. South Covington, etc., R. Co., 158 Ky. 64, 164 SW 361; Kentucky Cent. R. Co. v. McMurty, 3 KyL 625, 11 Ky. Op. 509. Md.-Baltimore, etc., R. Co. Rudy, 118 Md. 42, 84 A 241. V. Burkhardt, 30 Oh. Cir. Ct. 699. Tenn.-Illinois Cent. R. Co. V. Kuhn, 107 Tenn. 106, 64 SW 202. Tex.-St. Louis Southwestern R. Co. v. Kennedy, (Civ. A.) 96 SW 653. Va.-Birckhead v. Chesapeake, etc., R. Co., 95 Va. 648, 29 SE 678. Wash.-Elliott v. Seattle, etc., R. Co., 68 Wash. 129, 122 P 614, 39 LRANS 608. Ala [a] Complaint, declaration, or petition held sufficient to state a cause of action for personal injuries caused to a passenger: (1) By the derailment of the train on which he was riding. Bryce v. Southern R. Co., 129 Fed. 966; Missouri, etc., R. Co. v. Vandivere, 42 Okl. 427, 141 P 799. (2) By attempting to comply with the conductor's order to go into another coach while the train was in motion. Central of Georgia R. Co. v. Carleton, 163 Ala. 62, 51 S 27. (3) By reason of unsafe pathway. bama Great Southern R. Co. v. Godfrey, 156 Ala. 202, 47 S 185, 130 Am SR 76. (4) By falling down a flight of steps leading to the carrier's station. Central of Georgia R. Co. v. Campbell, 10 Ala. A. 288, 64 S 540. (5) By being struck by an engine while going along a passageway to board a train. Georgia R., etc., Co. v. Lloyd, 129 Ga. 650, 59 SE 801. (6) By falling over obstruction on unlighted platform at night while going to take train. Cleveland, etc., R. Co. v. Harvey, 45 Ind. A. 153. 90 NE 318. (7) By running a crowded car at so high a rate of speed that ing from such failure; and it is in general sufficient to allege ultimate facts showing that the relation of passenger and carrier existed, and that defendant negligently did, or omitted to do, the act or acts that proximately caused, or contributed to life and limbs were greatly jeopardized, and that, in order to escape such danger and to preserve his life and limbs, it was necessary for him to jump from the car, without specifically alleging the circumstances which made the car an unsafe and dangerous place and rendered his life and limbs in jeopardy, have been held sufficient. Eldridge V. Long Island R. Co., 3 N. Y. Super. 89. plaintiff was thrown or knocked off the running board, where he had been compelled to stand. Birmingham R., etc., Co. v. Hunnicutt, 3 Ala. A. 448, 57 S 262. (8) By negligently permitting a live electric wire resembling a rope to be suspended from the roof of the car whereon plaintiff was a passenger. Hopkins v. Michigan Tract. Co., 144 Mich. 359, 107 NW 909. (9) By negligence in switching a freight car in which plaintiff was riding as a passenger. Missouri, etc., R. Co. v. Cobb, 60 Tex. Civ. A. 562, 128 SW 910. (10) By negligence in permitting collision of trains. Birckhead v. Chesapeake, etc., R. Co., 95 Va. 648, 29 SE 678. (11) By disorderly conduct of other passengers. Baltimore, etc., R. Co. v. Rudy, 118 Md. 42, 84 A 241. (12) By negligence in assisting disabled passenger to board train. Williams V. Louisville, etc., R. Co., 150 Ala. 324, 43 S 576. 10 LRANS 413. (13) By negligence in assisting female passenger and in standing on her skirt while the car moved away. Citizens' St. R. Co. v. Shepherd, (Ind. A.) 59 NE 349. (14) By violent jerk of train causing door to swing to on passenger's hand. Branan v. Southern R. Co., 135 Ga. 24, 68 SE 793. (15) By negligence in operating car on an adjoining track. Elliott v. Seattle, etc., R. Co., 68 Wash. 129, 122 P 614, 39 LRANS 608. (16) By defect in platform. Louisville, etc., R. Co. v. Ledford, 142 Ga. 770, 83 SE 792. (17) By negligent operation of an elevator. Bullock V. Butler Exch. Co., 22 R. I. 105, 46 A 273. (18) Against the owner of a sight-seeing automobile as a joint tort-feasor. McFadden v. Metropolitan St. R. Co., 161 Mo. A. 652, 143 SW 884. [b] Complaint, declaration, or petition held insufficient to state a cause of action for personal injuries caused to a passenger: (1) From exposure on account of the refusal of a railroad company to keep open its waiting room. Smith V. Seaboard Air-Line R. Co., 10 Ga. A. 227, 73 SE 523. (2) By starting or jerking of car, in not alleging that defendant or its agents were negligent. Birmingham R., etc., Co. v. Weathers, 164 Ala. 23, 51 S 303. (3) In alighting while the car was in motion. Dabbs v. Rome R., etc., Co., 16 Ga. A. 612, 85 SE 955. [c] A petition is sufficient if it can resist a general demurrer, even though plaintiff is unable to recover all that he demands. Douglas, etc.. R. Co. v. Swindle, 2 Ga. A. 550, 59 SE 600. [d] Leaving moving car.-(1) A petition for injury to a passenger leaving a moving street car, merely alleging negligence in failing to stop at his destination, and injury in getting off, to avoid delay, under the belief that it was safe, does not state a cause of action. Dailey v. South Covington, etc., R. Co., 158 Ky. 64, 68, 164 SW 361 (where the court said: "The effect of the petition is, that to avoid a trifling inconvenience appellant recklessly attempted to alight from a moving car when it was unsafe to do so, since he does not allege that it was safe to do so, but merely that he believed it to be safe. The petition does not preclude the hypothesis that when plaintiff made the attempt to alight, the danger was obvious or apparent; and having failed to do so, his petition did not state a cause of action"). (2) In an action to recover for injuries sustained by jumping from a moving car, allegations that through the negligence of defendant's employees it became unfit for plaintiff to remain in the car, that his [e] The kind of train on which the passenger was riding when he was injured must be stated. St. Louis, etc., R. Co. v. Wright, 105 Ark. 269, 150 SW 706. [f] Imminent danger of collision. (1) A complaint alleging that defendant's agent negligently caused another car "to appear to be in imminent danger" of colliding with the car on which plaintiff was a passenger, whereupon she jumped, is defective in not showing that the appearance was such as to convince a reasonable person of the imminence of the danger. Birmingham R., etc., Co. v. Butler, 135 Ala. 388, 33 S 33. (2) But a complaint which averred that the car on which plaintiff was a passenger was "about to collide with" a locomotive sufficiently alleged that a collision was imminent. Selma St., etc., R. Co. v. Owen, 132 Ala. 420, 31 S 598. [g] Projecting arm from window. -A petition for damages for injuries to a passenger's arm while it was projected from a window of the car, alleging that while he "was sitting in said car with his arm on the window sill it was thrown out of the window by a sudden jerk or movement of the car," states a good cause of action, when taken in connection with allegations as to the dangerous construction of parallel tracks and the proximity of the cars to each other. Cincinnati, etc., R. Co. v. Burkhardt, 30 Oh. Cir. Ct. 699. [h] Pleading law of foreign state. -A declaration alleging that plaintiff was a passenger on a car operated by defendant, and that he was injured by the derailment of the car in a foreign state, is not defective in failing to allege that the wrong is actionable under the statutes or laws of such foreign state. Illinois Cent. R. Co. v. Kuhn, 107 Tenn. 106, 64 SW 202. [i] Passenger of transfer company-A complaint alleging that plaintiff employed defendant transfer company to convey her in a carriage to a railroad station, and that she was injured by reason of the negligence of the driver of the carriage in stopping it too close to a street car track, and by reason of the further negligence of the street car company in failing to operate its cars so as to avoid a collision which occurred, sufficiently stated a cause of action against both defendants to withstand a demurrer for want of facts. Frank Bird Transfer Co. v. Krug, 30 Ind. A. 602, 65 NE 309. 7. Ala.-Knight v. Tombigbee Valley R. Co., 190 Ala. 140, 67 S 238; Alabama Great Southern R. Co. v. Robinson, 183 Ala. 265, 62 S 813; Birmingham R., etc., Co. V. Oden. 164 Ala. 1, 51 S 240; Birmingham R., etc., Co. v. McGinty, 158 Ala. 410, 48 S 491; Birmingham R., etc.. Co. v. Wright, 153 Ala. 99, 44 S 1037; Birmingham R., etc.. Co. v. Moore, 148 Ala. 115, 42 S 1042; Birmingham R., etc.. Co. v. Adams, 146 Ala. 267, 40 S 385, 119 AmSR 27; Kansas City, etc., R. Co. v. Matthews, 142 Ala. 298, 39 S 207. D. C.-Connor v. Washington R., etc., Co., 43 App. 329. Fla. Florida East Coast R. Co. v. causing, the injury as stated.8 It is not sufficient to allege a duty on the part of defendant to do certain things and the breach of that duty as a conCarter, 67 Fla. 335, 65 S 254. Ga.-Georgia, etc., R. Co. v. Thigpen, 141 Ga. 90, 80 SE 626. Ill. Greinke v. Chicago City R. Co., 234 Ill. 564, 85 NE 327 [aff 136 Ill. A. 771; Ruch v. Aurora, etc., R. Co., 150 fl. A. 329 [certiorari den 243 Ill. 474, 90 NE 924]. Ind.-Indianapolis Tract., etc., Co. v. Pressell, 39 Ind. A. 472, 77 NE 357; Citizens' St. R. Co. v. Shepherd, 30 Ind. A. 193, 65 NE 765; South Chicago City R. Co. v. Moltrum, 26 Ind. A. 550, 60 NE 361. La.-Mills V. St. Tammany, etc., R., etc., Co., 139 La. 285, 71 S 511. Md.-Philadelphia, etc., R. Co. v. Allen, 102 Md. 110, 62 A 245. Mich.-Flint, etc., R. Co. v. Stark, 38 Mich. 714. Nebr.-Fremont, etc., R. Co. V. N. J.-Mettler v. Delaware, etc., R. [a] The breach of duty by a carrier to its passengers constitutes the cause of action for an injury to a passenger resulting therefrom, and the facts evidencing the breach are not the breach, but merely the facts which prove that a breach has occurred. Philadelphia, etc., R. Co. v. Allen, 102 Md. 110, 62 A 245. clusion of law, but the facts should be stated from which the law will raise the duty." There should be a definite statement of the injuries received.10 N. J.-Hess v. Public Service R. Co., 84 N. J. L. 329, 86 A 951. R. I.-Bullock v. Butler Exch. Co., 22 R. I. 105, 46 A 273. Tex.-International, etc., R. Co. v. Downing, 16 Tex. Civ. A. 643, 41 SW 190. Vt.-Devino v. Central Vermont R. Co., 63 Vt. 98, 20 A 953. Pleading conclusion of law generally see Pleading [31 Cyc 49]. a [a] Matters of law.-But the relative rights and obligations of plaintiff and defendant as passenger and carrier being matters of law, the objection that the duty alleged is a conclusion of law and does not harmonize with the fact averred to be a breach of that duty will not render the declaration insufficient to sustain a judgment if it contains facts sufficient to raise the duty of which a breach is alleged. Chicago, etc., R. Co. v. Clausen, 173 Ill. 100, 50 NE 680. [b] Special contract.-An averment that plaintiff was traveling on a live stock contract; that he alighted from the train at an intermediate station to attend to his stock, "which it was his right and duty to do under the terms of his contract;" and that he was injured in so doing, sufficiently alleges his right to alight at intermediate stations, as against a general demurrer, although the provisions of the contract conferring such right should have been set forth. International, etc., R. Co. v. Downing, 16 Tex. Civ. A. 643, 41 SW 190. which alleges that decedent was a Hagblad, 72 Nebr. 773, 101 NW 1033, passenger, and that his death was 106 NW 1041, 4 LRANS 254, 9 Ann proximately caused by the negligence Cas 1096. of the trainmen in and about the carriage of decedent as a passenger, or which alleges wanton, willful, and intentional misconduct of the trainmen, states a cause of action as against a demurrer. Central of Georgia R. Co. V. Carleton, 163 Ala. 62, 51 S 27. (2) A complaint which alleges the existence of the relation of carrier and passenger just before and at the time of the injuries, and which states that the carrier, failing in its duty to carry the passenger safely, so negligently conducted its business that by reason of such negligence the passenger received as a proximate result thereof personal injuries, states a cause of action for simple negligence, and is good as against a demurrer. Birmingham R., etc., Co. v. Wright, 153 Ala. 99, 44 S 1037. (3) Allegations that the carrier "so negligently and carelessly operated said train, and so negligently and carelessly failed to take the necessary precautions looking to the safety of said train and its occupants that the said car in which said plaintiff was riding by and through the negligence of the defendant was derailed, causing the same to be suddenly and violently stopped, and from the effects of which the said Amelia Hepburn was" injured as stated, are sufficient statements of ultimate facts to show negligence of defendant in the operation of its train and injury to plaintiff ultimately resulting from a particular fact stated, namely, the derailing and the sudden, violent stopping of the cars caused by the negligence alleged. Warfield V. Hepburn, 62 Fla. 409, 412, 57 S 618. (4) A declaration in an action against a street railroad company for injuries to a passenger, alleging that plaintiff was a passenger on defendant's railroad, and that it was its duty to carry plaintiff safely, that defendant failed to perform such duty, but permitted the car on which plaintiff was a passenger to collide with a certain other car of defendant, and as a result of such collision plaintiff was thrown 8. Ala.-Seaboard Air Line R. Co. with great violence against a seat of v. Mobley, 69 S 614; Birmingham R., the car on which she was a passenetc., Co. v. Fisher, 173 Ala. 623, 55 ger and was injured, stated a suffiS 995; Birmingham R.., etc., Co. v. cient cause of action, especially when Yates, 169 Ala. 381, 53 S 915; Cen-challenged by a motion in arrest of tral of Georgia R. Co. V. Carle- judgment. Greinke v. Chicago City ton, 163 Ala. 62, 51 S 27; Birming- R. Co., 234 Ill. 564, 85 NE 327 [aff ham R., etc., Co. v. Wright, 153 Ala. 136 Ill. A. 77]. (5) The obligations 99, 44 S 1037; Louisville, etc., R. Co. imposed on the carrier are fixed by v. Perkins, 152 Ala. 133, 44 S 602; law where the relation of passenger Birmingham R., etc., Co. v. Moore, and carrier is shown, so that, where 148 Ala. 115, 42 S 1024; Birmingham the complaint showed such relation, R., etc., Co. v. Adams. 146 Ala. 267, a further allegation of the violent 40 S 385, 119 AmSR 27. starting of the street car in a negligent manner sufficiently showed liability [b] Obstruction on tracks. An allegation that plaintiff's injuries were caused by a jerk of the car on which he was riding, which jerk in turn was caused by an obstruction "in and upon defendant's tracks." sufficiently alleges that such obstacle was under defendant's control. North Chicago St. R. Co. v. Schwartz, 82 II. A. 493. [c] Duty to assist passenger in alighting. Where, in a passenger's action for injuries received while alighting, any circumstances placing on the conductor a duty to assist passengers in alighting are relied on, they must be alleged in the petition. Georgia, etc., R. Co. v. Thigpen, 141 Ga. 90, 80 SE 626. Del.-King V. Wilmington, etc., Electric R. Co., 17 Del. 452, 41 A 975. Fla. Florida East Coast R. Co. v. Hayes, 66 Fla. 589, 64 S-274; Warfield v. Hepburn, 62 Fla. 409, 418, 57 S. 618; Pelot v. Atlantic Coast Line R. Co., 60 Fla. 159, 53 S 937. Ga.-King v. Southern R. Co., 128 Ga. 285, 57 SE 507; Georgia R., etc., Co. v. Adams, 127 Ga. 408, 56 SE 409; Mack v. Savannah, etc., R. Co., 118 Ga. 629, 45 SE 509; Wilkes v. Western, etc., R. Co., 109 Ga. 794, 35 SE 165; Douglas, etc., R. Co. V. Swindle, 2 Ga. A. 550, 59 SE 600. Ill. Greinke v. Chicago City R. Co., 234 Ill. 564, 85 NE 327 [aff 136 Ill. A. 771. Ind.-Evansville, etc., R. Co. V. Duncan, 28 Ind. 441, 92 AmD 322; Winona, etc., R. Co. v. Rousseau, 48 Ind. A. 248, 93 NE 34, 1028. Mo.-Rice v. Chicago, etc., R. Co., 153 Mo. A. 35, 131 SW 374. N. J. Miller v. West Jersey, etc., R. Co., 71 A 1113. Tex.-Missouri, etc., R. Co. V. Moody, 35 Tex. Civ. A. 46, 79 SW 856. [a] Illustrations.-(1) A complaint for resulting injuries. Winona, etc., R. Co. v. Rousseau, 48 Ind. A. 248, 93 NE 34, 1028. [b] Elevator case.-In an action for injuries, an averment that plaintiff was a passenger, in the exercise of due care, on an elevator operated by defendant, and that it was unsafe and unsound, and fell, injuring plaintiff, makes a prima facie case. Winheim v. Field, 107 Ill. A. 145. 9. U. S.-Atlantic, etc., R. Co. v. Ala.-North Birmingham R. Co. v. Fla.-Warfield v. Hepburn, 62 Fla. Ill. Chicago, etc., R. Co. v. Clausen. 173 Ill. 100, 50 NE 680; Ruch v. Aurora, etc., R. Co., 150 Ill. A. 829 [certiorari den 243 Ill. 474, 90 NE 924]. Ind.-Ohio, etc., R. Co. v. Craucher, 132 Ind. 275, 31 NE 941. Ky. Brown v. Louisville R. Co., 53 SW 1041, 21 KyL 995. Nebr.-Fremont, etc., R. Co. V. [c] A count is not bad merely because it incorrectly states the duty of defendant, as a statement of the duty is but a statement of a legal conclusion and is unnecessary. Ruch v. Aurora, etc., R. Co., 150 II. A. 829 [certiorari den 243 Ill. 474, 90 NE 924]. [d] Elevator case.-An allegation that a servant of defendant "opened the door of the elevator which opened onto the fifth floor, and thereby invited the plaintiff to walk out of said elevator while it was in motion," is bad because it is a mere conclusion of law with respect to the invitation. Bullock v. Butler Exch. Co., 22 R. I. 105, 106, 46 A 273. 10. Douglas, etc., R. Co. V. Swindle, 2 Ga. A. 550, 59 SE 600; Texas, etc., R. Co. v. Boleman, (Tex. Civ. A.) 112 SW 805. to [a] Illustrations.—(1) A statement that by a collision the lumbar region of plaintiff's body struck the top of the stove, scalding and burning such lumbar region, is a sufficient and definite statement of the injuries received. Douglas, etc., R. Co. v. Swindle, 2 Ga. A. 550, 59 SE 600. (2) Allegations in a petition against a carrier for damages for injuries to plaintiff's wife, that she had sustained "great injury to her left shoulder and arm," and had lost "the entire use of her left arm." were sufficiently comprehensive permit of a recovery for a diseased condition of her shoulder joint resulting from the injury. Texas, etc., R. Co. v. Boleman, (Tex. Civ. A.) 112 SW 805. [b] Mental suffering must be specially pleaded.-In case of mental suffering, the damages are special and must be specially averred, and when, in an action by a passenger against a carrier, the only allegation in the petition with respect to pain and suffering occasioned by injuries for which suit is brought is, "that in consequence of said injuries the plaintiff was confined to his bed under treatment of physicians for five or six weeks, and that he suffered painfully from said wounds," plaintiff cannot recover for men |