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NEGLIGENCE.

BY HAROLD N. ELDRIDGE.

I. COMPLAINT, DECLARATION OR PETITION, 4.
1. For Injury to Person Through Negligence, 5.
a. In Dropping Cake of Ice on Plaintiff, 6.
b. In Management of Appliances, 12.

(1) Hoisting Too Heavy Weight on Derrick, 12.
(2) Using Defective Appliances, 14.

(a) Causing Injury to Employee, 14.
aa. Belt, 14.

bb. Elevator, 16.

(b) Causing Injury to Third Person, 18.

c. In Management of Electric Plant — Improperly Insulated Wires, 19.

d. In Management of Hack, Causing Injury to Passenger,

22.

e. In Management of Premises, 23.

(1) Allowing Accumulation of Ice and Snow on Roof of Building, 23.

(2) Leaving Building Materials in Highway, 23.

(3) Leaving Pile of Earth in Highway, 24.

(4) Leaving Unguarded Elevator Vault, 25.

(5) Leaving Unguarded Machinery Attractive to Children, 26.

(6) Leaving Unguarded Hole, 27.

(a) On Private Premises, 27.

aa. In General, 27.

(aa) Alley, 27.

(bb) School Premises, 28.

(cc) Vessel, 29.

bb. Near Highway, 30.

(b) On Sidewalk, 32.

(7) Maintaining Fence, 32.

(8) Maintaining Seats at County Fair, 33.

(9) Maintaining Shafting, Causing Injury to Employee
of Defendant's Tenant, 34.

(10) Maintaining Sidewalk Grating, 35.
f. In Management of Private Vehicle, 37.
(1) Causing Collision, 37.

(a) With Plaintiff's Vehicle, 37.

aa. Generally, 37.

bb. Bicycle, 38.

(b) With Third Vehicle, 39.

13 E. of F. P.

- I.

1

Volume 13.

NEGLIGENCE.

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For Forms in Proceedings in Admiralty for Negligence, see the title AD-

MIRALTY, vol. 1, p. 406.

For Forms in Actions Against Attorneys for Negligence, see the title

ATTORNEYS, vol. 2, p. 969.

For Forms in Actions By and Against Bridge Authorities for Negli-
gence, see the title BRIDGES, vol. 4, p. 42.

For Forms in Actions Against Brokers for Negligence, see the title
BROKERS, vol. 4, p. 90.

For Form of Complaint Against a Builder for Negligence, see the title
BUILDERS AND ARCHITECTS, vol. 4, Form No. 4906.

For Forms in Actions Against Carriers for Negligence, see the title CAR-

RIERS, vol. 4, p. 192.

For Forms in Actions for Injury to Animals Through Negligence, see the

title CATTLE AND DOMESTIC ANIMALS, vol. 4. p. 376.

For Forms in Actions for Damages Caused by Vicious Animals, see the
title DANGEROUS AND VICIOUS ANIMALS, vol. 5,

For Forms in Actions Against Cemetery Corporations for Negligence, see

the title DEAD BODIES AND CEMETERIES, vol. 5, p.

1030.

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For Form of Complaint for Negligence, Causing Injury to a Drain, see
the title DRAINAGE, vol. 7, Form No. 8030.

For Forms in Actions Against Druggists for Negligence, see the title
DRUGGISTS, vol. 7, p. 233.

For Forms in Actions Against an Elevated Railroad for Negligence, see
the title ELEVATED RAILROADS, vol. 7, p. 443.

For Forms in Actions for Negligence, Causing Injury from Explosions,

see the title EXPLOSIONS AND EXPLOSIVES, vol. 8,

p. 414.

For Form of Declaration Against the Proprietor of a Ferry for Negli

gence, Causing Injury to Goods, see the title FERRIES, vol. 8,

Form No. 9506.

For Forms in Actions for Negligence, Causing Injury from Fires, see the

title FIRES, vol. 8, p. 598.

For Forms in Actions Against Innkeepers for Negligence, see the title

INNKEEPERS, vol. 10, p. 1.

For Forms in Actions by a Tenant Against a Landlord for Negligence, see
the title LANDLORD AND TENANT, vol. 11, p. 8.

For Forms in Actions for Negligence, Causing Injury to Lateral Support,
see the title LATERAL SUPPORT, vol. 11, p. 318.

For Forms in Actions by a Servant Against a Master for Negligence, see
the title MASTER AND SERVANT, vol. 12, p. 1.

For Form of Complaint Against Owner of Mill Dam for Negligence,

Causing Destruction of Crop, see the title MILLS AND MILL

DAMS, vol. 12, Form No. 13831.

For Forms in Actions for Negligence in the Management of Mines, see
the title MINĒS AND MINING, vol. 12, p. 319.

For Forms in Actions Against Municipal Corporations for Negligence, see

the titles MUNICIPAL CORPORATIONS, vol. 12, p. 952;

STREETS AND HIGHWAYS.

For Forms of Plea and Answer of Contributory Negligence, see the title
CONTRIBUTORY NEGLIGENCE, vol. 5, p. 458.

See also the GENERAL INDEX to this work.

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1. Requisites of Complaint, etc. Gen-

erally. For the formal parts of a

complaint, declaration or petition in a

particular jurisdiction consult the titles

COMPLAINTS, Vol. 4, p. 1019; DECLARA-

TIONS, vol. 6, p. 244.

Form of Action. In all cases, where

the injury is attributable to negligence,
although it were the immediate effect
of the defendant's act, the party in-
jured has an election, either to treat
the negligence of the defendant as the
cause of action, and declare in case or
to consider the act itself as the cause
of the injury, and to declare in tres-
pass. Dalton v. Favour, 3 N. H. 465.
Parties Defendant. - In an action on
the case to recover for personal injury,

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1. For Injury to Person Through Negligence.

be no negligence. Parker v. Providence, etc., Steamboat Co., 17 R. I. 376; Mexican Nat. R. Co. v. Crum, 6 Tex. Civ. App. 702. It is not enough, however, for the plaintiff to show merely that the defendant neglected a duty, and that he would not have been injured if the duty had been performed. Morrissey . Providence, etc., R. Co., 15 R. I. 271. And certainly not enough to show that defendant neglected a duty imposed for the benefit of a third person and that plaintiff would not have been injured if such duty had been performed. Hamilton v. Minneapolis Desk Mfg. Co., (Minn. 1899) 80 N. W. Rep. 693. But he must go further and show that the duty was one which the defendant owed him. Emry v. Roanoke Nav., etc., Co., 111 N. Car. 94; Wilson v. New York, etc., R. Co., 18 R. I. 491; Mexican Nat. R. Co. v. Crum, 6 Tex. Civ. App. 702.

A bare allegation of duty is not sufficient. West Chicago St. R. Co. v. Coit, 50 Ill. App. 640; Funk v. Piper, 50 Ill. App. 163; Angus v. Lee, 40 Ill. App. 304; Clyne v. Helmes, 61 N. J. L. 358. It is immaterial and ought never to be introduced. Breese v. Trenton Horse R. Co., 52 N. J. L. 250. For it is but a mere conclusion of law, is not traversable, and will not sustain a pleading. Ward v. Chicago, etc., R. Co., 61 Ill. App. 530; Marvin Safe Co. v. Ward, 46 N. J. L. 19; Kennedy v. Morgan, 57 Vt. 46. And is mere surplusage. West Chicago St. R. Co. v. James, 69 Ill. App. 609; Thamm v. Lahey, 59 Ill. App. 73; Zjednoczenie v. Sadecki, 41 Ill. App. 329. And is not even obnoxious to special demurrer. Jensen v. Wetherell, 79 Ill. App. 33. But the facts and circumstances from which the duty arises must be set out, and the sufficiency of the pleading must be determined from the facts from which the duty is deduced. Mobile, etc., R. Co. v. Crenshaw, 65 Ala. 566; West Chicago St. R. Co. v. James, 69 Ill. App. 609; West Chicago St. R. Co. v. Coit, 50 Ill. App. 640; Funk v. Piper, 50 Ill. App. 163; Angus v. Lee, 40 Ill. App. 304; Clyne v. Helmes, 61 N. J. L. 358; Breese v. Trenton Horse R. Co., 52 N. J. L. 250; Marvin Safe Co. v. Ward, 46 N. J. L. 19: Emry v. Roanoke Nav., etc., Co., III N. Car. 94; Wilson v. New York, etc., R. Co., 18 R. I. 491; Mexican Nat. R. Co. v. Crum, 6 Tex. Civ. App. 702;

Kennedy v. Morgan, 57 Vt. 46; Brothers v. Rutland R. Co., (Vt. 1898) 42 Atl. Rep. 980.

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In Breese v. Trenton Horse R. Co., 52 N. J. L. 250, it was alleged that the plaintiff was on" one of the street cars of the defendant “and thereupon, it became and was the duty of the said defendant to guard, protect and secure the said Edward Yard Breese in dismounting, descending, getting down and removing himself from the said car; yet the said defendant, not regarding his duty in that behalf, did not use due and proper care to guard, protect and secure the aforesaid Edward Yard Breese, whereby," etc. It was held that this description of the duty was not the statement of a fact, but was simply and exclusively the pleader's averment of the legal efficacy of the facts stated, and was therefore insufficient.

In an action for personal injuries caused by an elevator, it must be averred that defendant had authority or control over it, for in the absence of such averment no duty to regulate its running is shown. Troth v. Norcross, III Mo. 630. So in a complaint against a landlord of premises by a third person, who was injured by the falling of a part of the building through failure to repair, it must be shown that the defendant was bound to repair. Casey v. Mann, (N. Y. Super. Ct. Spec. T.) 5 Abb. Pr. (N. Y.) 91. And a complaint is insufficient which shows that the person injured was a trespasser, as defendant does not owe such a person any duty. Parker v. Pennsylvania Co., 134 Ind. 673. But an allegation that the plaintiff was at the place where the accident occurred, on business with, and at the invitation of, the defendant, was held sufficient to show the duty on the part of the defendant, as between the parties, of keeping the premises in a safe condition. Schmidt v. Bauer, So Cal. 565. See also McKee v. McCardell, 21 R. I., pt. 2, p. 156.

Duty cannot be established by proof of other facts not stated. Kennedy v. Morgan, 57 Vt. 46. Nor can a commonlaw duty be shown where the declaration is based upon a statutory liability, and there are no general averments of neglect of duty. Toledo, etc., R. Co. v. Cline, 135 Ill. 41.

An exception to the rule, that duty must be shown, exists where the law

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