plaintiff upon his coach, to be carried from to for the sum of ..... .... dollars, which was then and there paid by the plaintiff to the defendant. III. That while he was such passenger at...... [or near or between......and.......], the said coach was, by and through the carelessness and negligence of the said defendant, overturned and thrown down, with the plaintiff therein, as aforesaid, by means whereof the said plaintiff was greatly injured, and one of the legs of said plaintiff was broken, and fractured, and bruised, and the said plaintiff was otherwise greatly injured, wounded, and cut, insomuch that the said plaintiff then became sick, lame, and sore, and so continued for the space of........months thence next ensuing, and was during all that time prevented from attending to his business and carrying on the same; and the said plaintiff was forced to expend, and did expend, the sum of........ dollars for medical attendance and nursing, to his damage........ dollars. [Demand of Judgment.] 6. Essential Averments. It is only necessary to prove the overturn and the injuries sustained. The presumption of law is that the overturn occurred through the negligence of the defendant: Boyce v. Cal. Stage Co., 25 Cal. 460. 7. Form.-In an action on the case for an injury sustained by the upsetting of a stage coach, the declaration alleged that the plaintiff, at the special instance and request of the defendants, became a passenger in a certain coach, to be carried safely, and for certain rewards to the defendants; and that thereupon it was their duty to use due and proper care that the plaintiff should be safely conveyed. The breach was well assigned, showing the neglect and consequent injury sustained: Held, that the defect, if any, was cured by section 32 of the Judiciary Act, which provides that no litigant shall lose his right in law for want of form: Stockton v. Bishop, 4 How. U. S. 155; see, also, Washington v. Ogden, 1 Black, 450. 8. Material Averments.—In an action for an injury sustained by the oversetting of defendant's stage coach, plaintiff alleged that he paid for his passage the sum of ten dollars: Held, to be a material allegation: Harris v. Rayner, 8 Pick. 541. 9. Overturning Plaintiff's Carriage.-A case for personal injuries caused by plaintiff's horse being frightened by two loud, sudden and sharp whistles from defendant's engine, and upsetting his carriage: Held, that whether or not the above was a proper signal in the use of ordinary care was for the jury. A verdict for the plaintiff was upheld: Hill v. Portland R. R. Co., 55 Me. 438. 10. Paid Fare.-Carriers cannot protect themselves from liability for gross negligence, by contract: Illinois Cent. R. R. Co. v. Adams, 42 Ill. 474; see Adams Exp. Co. v. Haynes, Id. 89, 93. Otherwise when the passenger is carried free: Kinney v. Cent. R. R. Co., 3 Vroom, 407; but see Penn. R. R. Co. v. Butler, 57 Penn. 335. 11. Railroad Company.-An action lies against a city railroad company for the negligence of their driver in respect to stopping the car and assisting young and infirm persons on: Drew v. Sixth Avenue R. R. Co., 3 Keyes, 429. 12. Stock Running at Large.-Plaintiff was driving in the highway, using due care, when defendant's hog running at large, contrary to the statute, frightened plaintiff's horse, and his minor daughter was injured in consequence: Held, that defendant was liable, although he did not know that the hog was at large: Jewett v. Gage, 55 Me. 538. 13. Who Liable.-Where one owning a carriage hires horses and driver of B., for an injury resulting from the carelessness of the driver, B. alone is liable: Quarman v. Burnett, 6 M. & W. 497; Rapson v. Cubitt, 9 Id. 709; Hobbitt v. N. W. R. R. Co., 4 Welsh, Hurlst. & Gord. 254; Allen v. Hayward, 7 Adol. & Ellis (N. S.) 960. A municipal corporation is liable for injuries ensuing from neglect of its employees or officers: Lloyd v. Mayor of N. Y., 1 Seld. 369; contra, Howard v. San Francisco, 51 Cal. 52. The fact that the driver of the carriage and horses was their owner was conclusive in establishing that the relation of master and servant did not exist; and so far as the defendant's liability rested upon the existence of such relation he was not responsible for the injury which the plaintiff received through the negli gence of the driver: Boniface v. Relyea, 5 Abb. Pr. (N. S.) 259; see, further, ante, note 1, at the head of this chapter. No. 357. iii. Against a Railroad for Injuries by Collision. [TITLE.] The plaintiff complains, and alleges: I. That on the... . .day of........., 187., the defendant was a corporation duly incorporated under the laws of this State, and was the owner of a certain railroad, known as the Railroad, together with the track, rolling stock, and other appurtenances thereto belonging; and was a common carrier of passengers thereupon for hire, between ...... and ......, in the State of................. II. That on that day the defendant, in consideration of the sum of ..... dollars, then paid to it by the plaintiff therefor, undertook and agreed, as such common carrier, to transport and convey the plaintiff from ... to as a passenger, and the plaintiff thereupon entered one of the cars of the defendant to be so conveyed as aforesaid from to ..... ... aforesaid. III. That while he was such passenger, at .... near the station of and [or or between the stations of .], a collision occurred on the said railroad caused by the negligence of the defendant and its servants, whereby the plaintiff was much injured [state the injury according to the fact, and the special damage, if any]. [Or, III. That the defendant and its servants, in managing said cars in which plaintiff was a passenger, were so careless and negligent that it was unsafe for him to remain in one of them; and that in order to free himself from the danger, he was obliged to leap from the car, and in doing so was injured] [state injury according to the fact]. IV. By means whereof the plaintiff hath been damaged in the sum of dollars. [Demand of Judgment.] 14. Degrees of Negligence. Degrees of negligence are matters of proof and not of averment; and a general allegation of negligence, want of care and skill, etc., is sufficient in an action for injuries caused by such neg. ligence, whether the defendant is liable for ordinary or gross negligence: Nollon V. Western R. R. Co., 15 N. Y. 444. And an averment of malice does not vitiate the pleading: Winterson v. Eighth Avenue R. R. Co., 2 Hilt. 389; Robinson v. Wheeler, 25 N. Y. 252. 15. Diligence.-The same diligence is not required from a railroad company toward a stranger as toward a passenger. The care required is that which experience has found reasonable and necessary to prevent injury to others in like cases: Baltimore and Ohio R. R. Co. v. Breinig, 25 Md. 378; see Philadelphia W. and B. R. R. Co. v. Kerr, Id. 521. A railroad company is not liable for injuries received by a passenger while voluntarily and unnecessarily standing on the platform of a car in motion although by the express permission of the conductor and brakeman: Hickey v. Boston and L. R. R. Co., 14 All. 429. 16. General Averment of Negligence. Ordinarily a general averment of negligence is sufficient to admit proof of the special circumstances constituting it. Thus in an action against a railroad company for running over a child, evidence is admissible under such a general averment that there were no suitable brakes or guards in front of the car where the driver was stationed: Oldfield v. N. Y. and Harlem R. R. Co., 14 N. Y. 310. 17. Negligence Generally, and also Specific Acts. - Under a complaint alleging negligence generally, and also specifying particular acts of negligence, evidence of any other kinds of negligence is admissible, the general allegation being sufficient, the particular charges, being surplusage, should not affect the reception of evidence: Edgerton v. N. Y. and Пlarlem R. R. Co., 35 Barb. 389. Negligence is a question of fact, or mixed of law and fact; and in pleading it is only necessary to aver negligence generally, not the specific facts constituting the negligence: McCauley v. Davidson, 10 Minn. 418. 18. Particular Facts. The complaint in an action against a railroad company, for running over a person with an engine, need not show the particular facts constituting negligence on the part of the defendant, if it charges such negligence in a general way. Such complaint must show that there was no fault on the part of the person run over: Indianapolis, etc., R. R. Co. v. Keeley's Adm'r, 23 Ind. 133; St. Louis, etc., R. W. Co., v. Mathias, 50 Id. 65; see, also, note 34, post. 19. Several Acts of Negligence. If the plaintiff would rely on several acts of negligence as the cause of one injury, he may allege all the acts of negligence in one count, and aver that they were the cause; and if he prove upon the trial that any one of them was the cause, his complaint is sustained: Dickens v. N. Y. Central R. R. Co., 13 How. Pr. 228. 20. Sufficient Averment of Negligence.-In an action against a railroad company for injuries caused by a collision with its cars, a complaint which alleges that the defendant, with carelessness and with gross negligence, caused one of its engines to run upon the track, etc., sufficiently charges negligence: Ohio, etc., R. R. Co. v. Davis, 23 Ind. 553. 21. Without the Bounds of the State.-An action cannot be maintained under the statute for a wrongful act causing death, where such act occurred without the bounds of the State: Mahler v. Norwich and N. Y. Trans. Co., 45 Barb. 226. [TITLE.] No. 358. iv. The Same-By Car Running off Track. The plaintiff complains, and alleges: I. [Same as in preceding form.] II. That on that day the defendant received the plaintiff as a passenger in one of the carriages of the defendant on said road, to be transported from ...... to ... ...... III. That while he was such passenger, at the said defendant, not regarding its duty in that behalf, did, by its servants and agents, so carelessly, negligently, and unskillfully conduct the running of said cars and railroad, that, on the day and year aforesaid, by the carelessness, negligence, and default of its said agents and servants, and for want of due care and attention to its duty in that behalf, the said car was run off the track of said railroad, and thrown down the embankment thereof, whereby the said plaintiff was greatly cut, bruised and wounded, so that he, the said plaintiff, became and was sick, lame, and unable to walk, and was wholly unable to attend to the transaction and performance of his usual and necessary business, and so continued from thence hitherto; and said plaintiff has been put to great expense, to wit, to the amount of dollars, in endeavoring to cure his said wounds, dollars. bruises and fractures, to his damage [Demand of Judgment.] No. 359. V. For Injuries Caused by Negligence on a Railroad, in Omitting to give Signal. [TITLE.] The plaintiff complains, and alleges: I. That on the ........ day of .... 187., the defendant was a corporation duly incorporated under and pursuant to the laws of this State, and was the owner of a certain railroad, known as .... Railroad, together with the track, rolling stock, and other appurtenances thereto belonging. ....... II. That on that day the plaintiff was traveling in a carriage along the public highway, from ........ to... which public highway crosses the railroad aforesaid, at and as the plaintiff had reached said crossing, the defendants carelessly and negligently caused one of their locomotives [with a train of cars attached thereto] to approach said crossing, and then and there to pass rapidly over the track of said railroad, and negligently and carelessly omitted their duty while approaching said crossing, to give any signal by ringing the bell or sounding the steamwhistle, by reason whereof the plaintiff was unaware of their approach. III. That in consequence thereof, the locomotive struck the plaintiff's horse, and overset the plaintiff's carriage, and plaintiff was thrown out upon the ground with such force as to fracture his left arm [or other injuries]. as ... IV. That thereby the plaintiff was put to great pain, and was and still is prevented from going on with his business and is, as he believes, permanently injured, and was otherwise greatly injured, and was compelled to expend ........ dollars for medical attendance and nursing, to his damage .. ... dollars. ........ [Demand of Judgment.] 22. Omission of Duty.-The facts which are relied on as raising a duty must be alleged where the negligence consists in the omission of a duty: City of Buffalo v. Holloway, 7 N. Y. (3 Seld.) 393; affirming S. C., 14 Barb. 101; Taylor v. Atl. Mut. Ins. Co., 2 Bosw. 106; Congreve v. Morgan, 4 Duer, 439; Seymour v. Maddox, 16 Q. B. 326; S. C., 71 Eng. Com. L. R. 326; and see McGinity v. Mayor, etc., 5 Duer, 674. An existing duty or obligation is an essential and necessary prerequisite or predicate of an affirmation of neglect or failure to perform: Eustace v. Jahns, 38 Cal. 3; O'Brien v. Capwell, 59 Barb. 497. Neglect to ring the bell for the entire distance required by |