Parker v. Providence & Stonington Steamboat Co.

14 L.R.A. 414, 22 A. 284, 17 R.I. 376, 33 Am. St. Rep. 869, 1891 R.I. LEXIS 91

Opinions

The court is of opinion that the declaration sufficiently states a cause of action, by setting forth that the defendant's servants so negligently and carelessly managed and navigated its steamer that it ran upon and sank the vessel of the plaintiff's testator. This is the usual form of charging negligence in cases of highway collisions. The essential facts with reference to negligence are, first, plaintiff's right to the highway; second, in the exercise of due care; and third, defendant's interference with plaintiff's right by running into him. The defendant objects to this declaration upon the ground that it does not state in what the negligence consisted, and so does not inform him of the particular case he is called upon to answer, nor sufficiently protect him for the future in case of judgment. Undoubtedly a full statement to this extent is generally necessary, for in most cases there would be no case stated without it. Negligence consists in omitting to do a duty, or in doing it so carelessly as to bring injury to another. Ordinarily, therefore, unless the particular duty and its breach are set forth in the declaration, no negligence appears. These are the backbone of the declaration, without which it cannot stand.

The details which prove the negligence need not be set forth, but there must be an averment of facts showing the duty and the general manner of its breach, or else no case is stated. But in collisions the force and injury are direct, and, except where the injury is caused by the carelessness of a servant, an action of trespass may generally be maintained, in which the averment of the force alone would be sufficient. 1 Chitty on Pleading, *127, 2 Ib. *713, *860. In collisions, it is almost impossible to do more than state the fact that, while upon a highway, in the exercise of due care, the plaintiff was run into by the defendant. This raises a presumption of negligence, nothing appearing to the contrary, because of the defendant's control of the agent of the injury, and because such accidents do not occur without negligence. The plaintiff can seldom know or state just how it was done, whether by carelessness in one way or another, or even by design.

In the case at bar, the plaintiff can neither be expected nor required to state in what particular way the defendant's servants on another boat were negligent. It is enough to state facts which naturally or necessarily raise a presumption of negligence. InChase v. American Steamboat Co. 10 R.I. 79, the declaration, substantially the same as the one before us, was considered by this court and finally carried to the Supreme Court of the United States, 16 Wall. 522, but no suggestion appears that it was insufficient. The defendant cites in support of its demurrer to the declaration, Woodward v. Oregon Railway Navigation Co. 22 Pacific Reporter, 1076, but in this case the plaintiff was employed by the defendant as a locomotive engineer, and sued for injuries sustained by a collision. In such a case, clearly, it would be necessary to set forth in what the defendant's breach of duty consisted, for no presumption of negligence on the part of the company, so far as the plaintiff was concerned, would naturally or necessarily arise from the fact of a collision. The company may have given proper rules and directions, provided proper tracks, turnouts, etc., and still the accident have been caused by the negligence of some fellow servant; as, for instance, a switchman turning the wrong switch, or another engineer running his train contrary to orders.

In Thompson v. Flint P.M.R.R. Co. 57 Mich. 300, the point passed upon by the court was, that the declaration was defective in not setting forth that the plaintiff was in the exercise of due care.

In Missouri Pacific Railway Co. v. Hennessy, 75 Texas 155[75 Tex. 155], for an accident at a street-crossing, the point decided was, that an omission of duty, different from those set forth in the declaration, could not be proved at the trial. The remarks of the court in that case are in harmony with those of this court inCox v. Providence Gas Co., ante, p. 200, to this effect: "The rule of certainty in pleading is not too rigid to be reasonable, and does not require the statement of facts undiscoverable by the plaintiff. It permits much generality when the facts lie more in the knowledge of the opposite party than in the pleader." Nevertheless, enough must appear to give the defendant notice of the character of the case which the plaintiff will undertake to prove.

Demurrer overruled.

Subsequently the case came on for hearing on the plaintiff's demurrer to a plea in bar filed by the defendant.

November, 21, 1891.