Rogers v. Truesdale

Canty, J. The complaint in this action alleges that plaintiff’s intestate was a brakeman in the employ of defendant on a railroad [128] which he is operating as receiver; that defendant “negligently permitted a flat car to be negligently loaded” with cordwood, and two green slippery elm ties placed at one end of the car, lower than the cordwood, so that the brahemen in passing along over the cars in the discharge of their duty would be obliged to step down from the cordwood upon these ties; that these ties were so hewed that the edges remained in their natural state, except that the bark was loose and partly off, and that they were slippery, and dangerous to step upon; that this car, so loaded, was being hauled in defendant’s train, and said brakeman, plaintiff’s intestate, in the course of his employment, stepped down from the cordwood upon these ties, slipped, and fell from the car down between the cars of the moving train, which ran over and killed him. The defendant demurred to this complaint on the ground that it does not state facts sufficient to constitute a cause of action, and appeals from an order overruling the demurrer. It is claimed by appellant that the complaint does not show that the car was negligently loaded. The complaint alleges that the car was “negligently loaded.” It is well settled that the word “negligently” is an allegation of the fact, and that it is generally sufficient, without stating the particular circumstances or details which go to make up the negligence complained of. The word “negligently” is not a mere conclusion of law, unless all the force is taken out of it by the further statement of the particular acts or omissions which constitute the negligence. But it must affirmatively appear that this further statement is so specific as to put the court in possession of all the exact details which go to make up the negligence. There is a further statement in this complaint of the acts and omissions which constitute the negligence complained of, but we cannot say that it is thus specific. For instance, it does not affirmatively appear whether the slippery elm ties complained of were placed crosswise or lengthwise of the car, whether they lay in a horizontal position, or whether one end was much lower than the other. Whether this further statement of specific facts in this complaint shows a cause of action it is not necessary to decide. It does not affirmatively show that there is not a cause of action, [129] and it does not wholly supersede the general allegation of negligence. We are of the opinion that the order appealed from should be affirmed. So ordered. Buck, J., absent, sick, took no part. (Opinion published 58 N. W. 688.)