Mole v. Payne

*251 McCARTHY, C. J. Appellant’s complaint is an attempt to state a cause of action to recover damages for a violation of the so-called railroad fencing statute. (C. S., sec. 4814.) It alleges inter alia that, at a point on the O. S. L. Railroad Company’s line where it was the duty of the said railroad company and respondent to keep and maintain the tracks and right of way fenced, the said railroad company had constructed a gate, but had negligently and carelessly allowed the said gate to be insecure and inadequately and defectively fastened, in this, that it was a double gate, and its two parts were held together or connected when closed by a single strand of barbed wire. It further alleges that seven of appellant’s horses passed through said gate upon the tracks and were killed by an engine and train of said railroad company. Respondent interposed no demurrer to this complaint. Upon the trial, at the close of appellant’s evidence, respondent moved for a nonsuit upon the following grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action and the proof is insufficient to establish a cause of action in favor of the plaintiff and against the defendant; (2) because both pleading and proof are insufficient to establish a liability either statutory or at common law. The court indicated its intention to sustain the motion, but before it had actually done so appellant asked leave to reopen his case and amend the • complaint so as to allege that at the point in question where the said gate and fence were located the railroad passed through and along cultivated fields. The court granted the motion for nonsuit and denied appellant leave to open his case and amend. From a judgment of nonsuit this appeal is taken, the principal assignments of error being that the court erred (1) in refusing to permit *252 appellant to reopen his case and amend his complaint as requested, (2) that the court erred in granting the motion for nonsuit. From what is said in the briefs we infer, although the court did not expressly say so, that the principal reason for granting the motion, for nonsuit was that the complaint did not state a cause of action. Obviously the complaint does not state nor attempt to state an action for negligence at common law, since it contains no allegation that even suggests negligence in the management or operation of the train. It is clearly an attempt to state a cause of action for violation of C. S-., see. 4814. It does not allege any of the facts mentioned in the statute which make it incumbent upon a railroad company to fence its road, but states merely the conclusion of law that the accident occurred at a place where it was the duty of the said railroad company and defendant to keep' and maintain the tracks and right of way fenced. "While there is some authority to the effect that such an allegation is good (Louisville etc. R. Co. v. Hart, 2 Ind. App. 130, 28 N. E. 218), the better reason and the weight of authority hold that it is not, and such a complaint does not state a cause of action. (Metlen v. Oregon Short Line R. Co., 33 Mont. 45, 81 Pac. 737; Miley v. Northern Pac. Ry. Co., 41 Mont. 51, 108 Pac. 5; Thurman v. Pittsburg & M. Copper Co., 41 Mont. 141, 108 Pac. 588; Dufur v. Lewis B. & L. Co., 89 Wash. 279, 154 Pac. 463.) See, also, Perkins v. Loux, 14 Ida. 607, 95 Pac. 694, in which this court said: “Where a plaintiff desires to avail himself of a statutory privilege or right to be granted on the facts set forth in the statute or ordinance, such facts must be alleged in the complaint.” ■Conceding, however, that the complaint does not state a cause of action, this was not ground for nonsuit. The granting of a nonsuit is governed by statute in this state. C. S., sec. 6830, states in detail the different grounds of nonsuit and insufficiency of the complaint is not mentioned. “The sufficiency of the complaint, however, was not challenged by demurrer or upon the admissibility of evidence *253 and was only raised upon the motion for a nonsuit. This, however, is not a ground for a nonsuit.” (Strong v. Western Union Tel. Co., 18 Ida. 389, at 407, 109 Pac. 910, 916.) Again this court' said: “Sec. 4354, Rev. Codes, provides: ‘An action may be dismissed, or a judgment of nonsuit entered, in the following cases: ....,’ and the cases enumerated do not cover the objection that the complaint does not state facts which constitute a cause of action. In other words, the insufficiency of the complaint is not a ground upon which a motion for a nonsuit may be based. ’ ’ (Ludwig v. Ellis, 22 Ida. 475, 126 Pac. 769.) The insufficiency of the complaint was therefore not ground for granting a nonsuit. However, that is not the only ground set forth and relied upon. Another ground is that the evidence is insufficient to make a case for the jury. This is argued by respondent as another justification for granting the nonsuit. The question arises whether the motion for nonsuit properly raises the question of insufficiency of the evidence. The form of the motion so far as it pertains to this question is as follows: “1st. That the complaint does not state facts sufficient to constitute a cause of action, and the proof is insufficient to establish a cause of action in favor of the plaintiff and against the defendant; “2nd. Because both pleadings and proof are insufficient to establish a liability, for the reason that the complaint does not allege facts constituting violation of or right to recover under any statute, and the evidence is insufficient to support a recovery under any statute. ’ ’ This court has held that a motion for a nonsuit must specifically set forth the grounds relied on. (Idaho Mercantile Co. v. Kalanquin, 7 Ida. 295, 62 Pac. 925.) "When insufficiency of the evidence is relied on as a ground of non-suit, the motion must specify wherein the evidence is insufficient, and, if it does not do so, it should be denied. (Jacobs v. Union Mercantile Co., 17 Mont. 61, 42 Pac. 109; In re *254 Soale, 31 Cal. App. 144, 159 Pac. 1065; Barlow v. Salt Lake & U. R. Co., 57 Utah, 312, 194 Pac. 665.) The motion in the present case does not properly raise the question o£ insufficiency of the evidence. It should therefore have been denied. Great liberality should be shown in permitting amendments. (C. S., sec. 6726. Kroetch v. Empire Mill Co., 9 Ida. 277, 74 Pac. 868; Dunbar v. Griffiths, 14 Ida. 120, 93 Pac. 654; Bankin v. Caldwell, 15 Ida. 625, 99 Pac. 108.) To be sure this court has held that an application to amend the pleading is addressed to the sound discretion of the trial court. (The Mode, Ltd., v. Myers, 30 Ida. 159, 164 Pac. 91.) And its ruling should not be reversed except for abuse of discretion. (Craven v. Bos, 38 Ida. 722, 225 Pac. 136.) The ruling of the lower court refusing permission to amend will, however, be reversed where it is clear that it was an abuse of discretion. (Dunbar v. Griffiths, supra; Harrison v. Russell & Co., 17 Ida. 196, 105 Pac. 48.) In his application for permission to amend the complaint appellant offered to pay the costs of the continuance and give respondent time to prepare a defense to the amendment to the complaint. To have granted the amendment would have violated no rights of respondent and would have been in the interest of justice, and to refuse permission to amend was an abuse of discretion. The judgment is reversed and the case remanded, with instructions to the district court to permit the amendment of the complaint and grant a new tidal in accordance with the views herein expressed. Costs are awarded to appellant. Budge, William A. Lee and Wm. E. Lee, JJ., concur.