Hickman v. Kansas City, Memphis & Birmingham Railroad

66 Miss. 154

• Court: Mississippi Supreme Court
• Decided: October 15, 1888
• Status: Published

Opinion

Arnold, C. J.,

delivered the opinion of the court.

Appellant, plaintiff in the court below, sued appellee to recover damages on account of her husband being killed by one of its trains. It is alleged in the declaration that the death was caused by the recklessness and negligence of the employees in charge of the train. A demurrer to the declaration, was sustained, on the ground, that it failed to show, that the deceased was free from fault, or in the exercise of'reasonable care, at the time he was struck by the train.

Whether it was necessary for the declaration to contain such an allegation, is an open question in this state. Vicksburg v. Hennessy, 54 Miss. 391, to which we are referred by counsel, does not apply, for in that case, the plaintiff’s own testimony showed that the injury of which he complained, was occasioned by his own fault, and neither the question of pleading nor the burden of proof was before the court.

In Alabama, California, New York, and Texas, it is held, in accordance with the precedents of declarations at common law, in like cases, that it is not necessary in an action to recover damages for personal injuries caused by the negligence of another, for the plaintiff to allege specially or distinctly in the declaration that the injury occurred without fault on the part of the person injured, or that he exercised reasonable care to avoid it. M. & M. R. R. Co. v. Crenshaw, 65 Ala. 566 ; Robinson v. The Western Pacific R. R. Co., 48 Cal. 409 ; 1 Estee’s Pl., § 1836 ; Lee v. Troy Gas Light Co., 98 N. Y. 115; Hackford v. N. Y. C. R. R. Co., 6 Lansing 381; the Texas and Pacific R. R. Co. v. Murphy, 46 Tex. 356. A different rule prevails in some localities, but it is believed that the weight of reason and authority is against it.

The allegation, that the injury was produced in consequence of the negligence of the employees of the defendant, implies that there was no negligence on the part of the deceased contributing to it, and as a matter of pleading, it was sufficient.

It was not necessary to state more than a prima facie case in the declaration and if, on such an allegation the proof should show that the injury did result from the negligence of the employees of the defendant, and there was no testimony imputing such negligence or want of reasonable care to the deceased, as would bar recovery, it is not perceived why the plaintiff would not be entitled to judgment for the damages that might be proved.

Judgment reversed, demurrer overruled, and cause remanded.