Downs v. Central Vermont Railroad — 38 N.Y. St. Rep. 228

Majority

p. 228

Ira Downs, Resp’t, v. The Central Vermont Railroad Co., App’lt.

(Supreme Court, General Term, Third Department,

Filed May 21, 1891.)

Headnote

Negligence—Pleading—Sufficiency of complaint.

In an action against a corporation to recover damages for negligence in killing a horse, the complaint alleged that the defendant was a corporation, and operated a railroad; that because it neglected to repair a certain fence, culvert and cattle-guard, which it was bound to repair, the plaintiff’s horse, without plaintiff’s fault, came on the track, and by reason of defendant’s negligence in moving its cars was killed. Held, that the complaint stated a cause of action, and sufficiently connected defendant with the injury.

Appeal from order overruling demurrer to the complaint

Louis Hasbrouck, for app’lt; Shedden & Booth, for resp’t

This is an appeal by defendant from an order overruling a demurrer.

The action is to recover for the killing of a horse of plaintiff. It avers that defendant is a corporation and operated a railroad ; that by reason of its neglect to repair a certain fence on the side of the railroad at a point described, which it was bound to repair

p. 229

and by reason of its neglect to build or repair a certain culvert and cattle guard, also described, which it was bound to build and repair, the plaintiff’s horse, without plaintiff’s fault, came on the track and, by reason of defendant’s negligence in running its cars, was killed.

The defendant claims that the complaint does not allege facts and does not allege that defendant has done or omitted anything which caused the injury.

Undoubtedly the defendant is entitled to have the plaintiff allege the facts which constitute negligence and thus to show defendant’s alleged connection with the injury caused to plaintiff. This we have discussed at some length and decided at this term in Toomey v. Albany, ante, 91. But in this case the plaintiff has alleged these facts, viz, the neglect to repair the fence and the neglect to build and repair the culvert and cattle guard. It may be that defendant claims that the mode of allegation is not positive; that is, that the plaintiff does not allege that defendant did not do these acts; but alleges only that by defendant’s neglect in not doing them the injury was caused. We do not think that criticism is sound. The object of pleading is to inform the opposing party of the matter on which the pleader relies. And undoubtedly the defendant is informed of the ground of - action in this case.

Whether the allegation of negligence in running the cars is sufficient to permit plaintiff to show any other negligence than that of neglecting to repair the fence and the culvert and cattle guard, we need not say. It is enough that we think a cause of action is set forth in the complaint

Judgment interlocutory affirmed, with costs.

Landon and Mayham, JJ., concur.