McVeigh v. Missouri, Kansas & Texas Railway Co.

127 P. 624, 88 Kan. 13, 1912 Kan. LEXIS 6

Opinion

Per Curiam:

The defendant asks for a rehearing because the opinion fails to refer to the defendant’s motion for an order for more definite averments in the petition. The motion in substance was to require the plaintiff to state the particular acts of its employees whereby the running of the train caused the fire, and wherein the running of the engine and train was negligent. The following quotation from the opinion in Railway Co. v. Garrison, 66 Kan. 625, 72 Pac. 225, is applicable to the question presented by this motion:

“It was said in St. L. & S. F. Rly. Co. v. Snaveley, 47 Kan. 637, 28 Pac. 615, that in such a case negligence need not be pleaded at all, it being sufficient merely to allege that the fire was caused by the operation of the railroad, because, under the statute, that is all that need be proved.” (p. 626.)

In that case, however, the specific allegation was made that the defendant was negligent in the use of its engine, and it was held that, having thus restricted his allegation, the plaintiff should be required to disclose what was meant by the averment. Similar restrictive words were not used in this petition.

The opinion is pertinent to the motion as well as to the principal issue.

The petition for rehearing is denied.