Fahr v. Manhattan Railway Co.

A complaint must contain a statement of the facts constituting the cause of action. Code, § 431. Though concise, it must still present every constituent of the right and the wrong on which the action proceeds. A requisite fact may appear by implication as well as by express allegation ; but the intendment must be reasonable and fair, Kain v. Larkin, 141 N. Y. 144 ; 56 St. Rep. 675 ; Sanders v. Soutter, 126 N. Y. 193 ; 37 St. Rep. 1 ; Marie v. Garrison, 83 N. Y. 14 ; Milliken v. W. U. Tel. Co., 110 N. Y. 403 ; 18 St. Rep. 328 , and a construction in favor of the plaintiff can-be such only as the language requires. Nat. City Bank v. Westcott, 118 N. Y. 468 ; 29 St. Rep. 806 ; Magauran v. Tiffany, 62 How. 251 . The liberal construction of a pleading enjoined by .the Code, is applicable only to matters of form; the1' rule still is that an ambiguous averment must be taken against the party advancing it, and that the omission of an essential fact may not be supplied by inference. Clark v. Billon, 97 N. Y. 370 . Consistently with the prescribed canons for the construction of a pleading, it is impossible to collect from the complaint under criticism, the essential elements of an actionable wrong; namély, negligence of the defendant and absence of contributory negligence on the part of the plaintiff. Conceding negligence in starting the train before the gate was closed; manifestly that starting was not the cause of plaintiff’s fall; for, the train was already in motion when he boarded it. An act of negligence unconnected with the injury is necessarily harmless; but, negligence and consequent injury must concur in the creation of a cause of action. The statute requires further, that “ the gate shall be kept closed while the car is in motion.” Chap, 565, § 139, Laws of 1890. Assuming negligence in leaving the gate open, and still it is not apparent that such negligence was the cause of the injury. But for the open gate the plaintiff could not have boarded the car; and - hence the open gate was a condition of the injury. It is not pretended, however, that the open gate was the cause of the injury. What was that cause ? Upon this, the essential point, the complaint is silent; and we are unable, by any legitimate inference from its allegations, to ascertain the act of negligence on the part of the defendant that caused the plaintiff’s injury. Speculation may suggest any one among innumerable facts of imagination as the immediate and responsible cause of the injury; but the law requires that cause to be stated in the pleading and not left to conjecture. Dobbins v. Brown, 118 N. Y. 189 ; 28 St. Rep. 957 . That the motion of the car was the cause of his fall, the plaintiff omits, ex industria, to aver. Accepting, however, the motion of the car as the cause of the injury, then as plaintiff boarded the caf while in motion, he voluntarily subjected himself to the operation of the agency by which he suffered the hurt; and so his own negligence was a contributing cause of his injury. This conclusion the plaintiff seeks to avoid by the allegation that the motion of the car was so slight and slow as to be imperceptible. But, if the motion was so slight and slow as to be imperceptible, its energy must have been inadequate to the effect supposed; namely, throwing plaintiff down and dragging him along the platform. On the

Judgment affirmed, with costs. Daly, O. J., and Bisohoff, J,, concur.