Ohio & Mississippi Railway Co. v. People ex rel. Van Gilder

Mr. Justice Craig delivered the opinion of the Court: It will be observed that the demurrer in this case was special, and while the declaration may be good in substance, yet, under the rules of pleading, if it was technically defective the judgment overruling the demurrer was erroneous. Here it is averred that the defendant, on a certain day, propelled a certain engine, with a certain train of cars attached thereto, across said public highway. What time in the day this occurred, in what direction the train was running, or whether it was a freight or passenger train, is not disclosed by the declaration. Suppose twenty or thirty trains cross this highway in different directions every day; how could the defendant know, from the averments of the declaration, which one of the trains plaintiff would attempt to prove had violated the law ? And if it could not ascertain this fact from the averments of the declaration, how could the company be prepared with evidence to meet the charge made in the declaration? Chitty on Pleading (vol. 1, page 232,) says : “A general statement of facts which admits of almost any proof to sustain it, is objectionable. * * * (The principal rule as to the mode of stating the facts is, that they must be set forth with certainty, by which term is signified a clear and distinct statement of the facts which constitute the cause of action or ground of defense, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment.” j In Cook v. Scott, 1 Gilm. 333, this court held: “The province of the declaration is to exhibit upon the record the grounds of the plaintiff’s cause of action, as well for the purpose of notifying the defendant of-the precise character of those grounds as of regulating his own proofs.” The averments in plaintiff’s declaration did not conform to the rule indicated. ■' The plaintiff knew when this action was instituted what kind of a train had violated the statute, the direction it was running, and- about the hour it crossed the highway, and it is imposing no hardship whatever upon a plaintiff to require those facts to be averred in the declaration, so that the defendant may come prepared to meet them. Chicago and Alton Railroad Co. v. Howard, 38 Ill. 416, is a case in point. There, as here, an action was' brought to recover a penalty for the violation of the section of the statute heretofore set out. The defendant demurred to the declaration, on the ground that the declaration was uncertain in respect to the description of the highway in reference to which the offense was alleged to have been committed. The trial court overruled the demurrer, and on appeal the ruling was held to be erroneous. In the decision of the case it is there said; “Under either count in the declaration appellee could have proved an omission to sound the whistle or ring a bell at any road crossing in the county of McLean, It is a familiar rule that each pleading must be sufficiently certain to apprise the opposite party of what he is required to meet on th§ trial, and the court of the issue presented. In this we think this declaration was fatally defective. It should by name, location, or by the termini of the various roads, have apprised appellants of the place where the offense was charged to have been committed.” The same reasoning which applies to the averments in respect to the crossing, also applies to the averments of this declaration in regard to the character of the train, the direction it was running, and the time it crossed the highway. In Chicago and Alton Railroad Co. v. Adler, 56 Ill. 344, what is said in the opinion seems to sustain the declaration in this case. But in that case no special demurrer had been filed to the declaration, and the question here involved did not arise on the record, and what was said can not control here. We think the declaration was defective, and the court erred in overruling the demurrer. The judgments of the Appellate and circuit courts will be reversed, and the cause remanded. Judgment reversed.