it partially by excavation, and partially by raising walls: Robbins v. Chicago City, 4 Wall. U. S. 657. 56. Foundation of Action.-The foundation of this action is the personal tort of the defendant, and not of his testators. The defect in the street from which the injury resulted to plaintiff is not alleged to have existed anterior to the death of such testator; hence no obligation was incurred by the testator in his life-time in respect thereto, which could serve as a basis for a valid claim against his estate, or a right of action against the administrator of his estate as such: Eustace v. Jahns, 38 Cal. 3. 57. Non-repair of Premises. - A complaint against the owner of premises leased to a third person, to recover damages sustained by plaintiff by the falling of a part of the building through want of repairs, is bad on demurrer, unless it states facts from which the Court can say that the owner was bound to keep the premises in repair. A mere general allegation that defendant was bound to keep the premises in repair is insufficient: Casey v. Mann, 5 Abb. Pr. 91; S. C. sub. nom. Corey v. Mann, 14 How. Pr. 162; see Brown v. Harmon, 21 Barb. 508. 58. Respondeat Superior.--The responsibility, in cases of personal injuries, is upon him who has the control and management of the work, and the relation of respondeat superior has no application where the relation of master and servant does not exist: Fanjoy v. Seales, 29 Cal. 243; the doctrine approved in Du Pratt v. Lick, 38 Cal. 691. Where there is no power of selection or direction, there can be no superior, and where a man is employed to do the work with his own means and by his own servant, he has the power of selection and direction, and he, and not the person for whom the work is principally done, is the superior: Fanjoy v. Seales, 29 Cal. 243; cited and followed in Du Pratt v. Lick, 38 Cal. 691. 59. Street Contractor, Liabilities.-The responsibility in cases of repairs in public streets made by a contractor rests upon him who has control and management of the work. The doctrine of respondeat superior has no application where the relation of master and servant does not exist; but where a man is employed to do the work with his own means and by his own servants, he and not the person for whom the work is being primarily done is the superior: Boswell v. Laird, 8 Cal. 469; the doctrine recognized in Fanjoy v. Seales, 29 Id. 243; and followed in the cases of Du Pratt v. Lick, 38 Cal. 691; O'Hale v. Sacramento, 48 Id. 212, and Krause v. Sacramento, Id. 221. GO. Street Contractor Primarily Liable. The law does not impose upon the owner of a lot fronting on a street of an incorporated city, the duty to repair a defect in the portion of the public street upon which his lot abuts or fronts: Eustace v. Juhns, 38 Cal. 3. The only duty imposed on him is the payment of the assessment which shall be lawfully imposed upon his lots or lands. So, the owner of property is not liable for the torts of servants employed by the contractor: Van Wert v. City of Brooklyn, 28 How. Pr. 451; O'Rourke v. Hart, 7 Bosw. 511; Schular v. Iludson River R. R. Co., 38 Barb. 653; nor for omissions or negligence of contractor so employed: Fish v. Dodge, 38 Barb. 163: Benedict v. Martin, 36 Id. 288. But the principal contractor is liable for negligence of sub-contractors and their servants: Creed v. Hartmann, 29 N. Y. 591. So of a party obtaining authority to do work in a public street: McCamus v. Citizens' Gas Light Co., 40 Barb. 380. But pub lic officers are not within the rule of employer and employee, and are not responsible for persons employed under them: Murphy v. Commissioners of Immigration, 27 How. Pr. 41. Where a party was injured by falling at night into an excavation made in grading the street of a city, under a city contract, given out in obedience to the law, owing to the failure to put lights or guards about the place, the contractor and not the city is liable: James v. San Francisco, 6 Cal. 528; see p. 221, note 57; but see ante, notes 50, 51. No. 365. xi. For Injuries Caused by Rubbish in the Street, whereby Plaintiff was Thrown from his Carriage. [TITLE.] The plaintiff complains, and alleges: I. That the defendant, on or about the..... .day of 187., wrongfully placed large quantities of lumber and bricks in the public highway [known as..... street], in... and negligently left the same therein, obstructing the highway during the night time, and without proper protection or notice to citizens and travelers against accidents. II. That by reason of said negligence and improper conduct of the defendant, in the night-time of that day, the carriage of the plaintiff, with the plaintiff therein, then passing through said street, was accidently driven against the said lumber and earth, and was thereby overturned; by means whereof the plaintiff was bruised and wounded, and was for........ days prevented from attending to his business, and was compelled to expend, and did expend...... dollars for medical attendance and nursing, to his damage ... dollars. [Demand of Judgment.] 61. Mutual Negligence.—A child was killed by the fall of a counter on which he was climbing, and which had been left in the street of a city for two or three weeks. The child was six years old, and at the time of his death was playing unattended, six blocks from home: Held, that the city was no more negligent than the parents of the child, and was not liable: Chicago v. Starr, 42 Ill. 174. No. 366. xii. For Injuries Caused by Leaving a Hatchway Open. The plaintiff complains, and alleges: ant was the occupant of the [store No. 187., the defend...street], ..... ... and had possession and control of the hatchway hereinafter mentioned. II. That on the said day the plaintiff was in the said [store or building], by permission of the defendant, for the purpose of transacting business with him [or in the discharge of his duties as [state what]. III. That the hatchway on the [second] story of the said building was then, by the negligence of the defendant, left open, and not in any manner protected. IV. That in consequence thereof the plaintiff fell through the said hatchway, and was much injured [state special damage, if any, as,] and was confined to his bed and detained from business for........days, was compelled to expend........ dollars for medical attendance and nursing, and has been made permanently lame, to his damage...... dollars. day of ..... 187., at The plaintiff complains, and alleges: I. That on the the defendant was the owner, and had possession and control of a certain building and premises [describe them], with the appurtenances thereto belonging, which building was then occupied by him as [designate the uses of the building, if a public resort]. II. That said building was negligently and carelessly built, inasmuch as there was in the public hall in the third story of the same, at the time of its erection and leasing by the defendant, as well as at the time herein before mentioned, an unguarded hatchway, opening into the second. story. III. That the defendant, well knowing the premises, and while the owner and occupant [or while the occupant] of said building, did, on the day and year aforesaid, negligently leave the same open and unprotected, by means whereof the plaintiff, who was then lawfully in said building, and in pursuit of his business [or otherwise show for what purpose, and by what right, the plaintiff was there], then and there necessarily and carefully passing along said hall, fell through said hatchway. IV. That in consequence thereof the plaintiff was greatly injured, and became sick and lame, and so remained for a long time [or so still remains], and was, during the space of.. .., prevented from attending to his business as and was compelled to expend........dollars for medical attendance [or otherwise state injuries to plaintiff], to his damage........ dollars. [TITLE.] [Demand of Judgment.] No. 368. xiv. For Injuries Caused by Vicious Dog. The plaintiff complains, and alleges: at.... I. That on the........day of........, 187., at. the defendant was the keeper [or owner] of a certain vicious dog, which was accustomed to bite mankind. II. That the said defendant, well knowing the premises, did wrongfully and injuriously keep and harbor the said vicious dog, and wrongfully and negligently suffered such dog to go at large, without being properly guarded or confined. III. That while so kept as aforesaid, the said dog did bite and greatly wound this plaintiff [state the particulars], whereby this plaintiff became sick and sore and lame, and so continued for the space of [six months] thence next following; and was obliged to pay, and did expend.. dollars for medical attendance consequent thereon, and was prevented during all said months of sickness from attending to his lawful affairs, to his damage. ..dollars. [Demand of Judgment.] 62. Averments Essential.-The averment that he was of a mischievous or ferocious nature is simply an averment that the dog would bite men, that he was accustomed to bite, and this is best evidenced by the fact that he did bite plaintiff. There are three necessary averments: First. That the dog would bite mankind; Second. That the owner or keeper knew it; and, Third. That he did bite plaintiff. When all this is proved, it matters not how carefully the dog was kept; the owner or keeper has no right to keep such a dog at all: McCaskill v. Elliott, 5 Strobh. R. 196; but the cases of Jones v. Perry, 2 Esp. R. 382; and Cockerham v. Nixon, 11 Iredell Rep. 269, seem to make a distinction. 63. Counts.-Chitty advises counts averring that the dog was of a ferocious and mischievous nature, and also for not keeping the dog properly secured or fed, as the facts may be: 2 Chitty Pl. 597. 64. Mischievous Animals.-The gist of an action for keeping a mischievous animal, at common law, is the keeping of the animal after knowledge of its mischievous propensities. And a declaration is sufficient which alleges the ferocity of the animal, and the knowledge of the defendant, without any negligence or want of care: Popplewell v. Pierce, 10 Cush. 509, and cases there cited. 65. Ownership.-It is not necessary in an action for damages sustained by the bite of a dog, for the plaintiff to prove that the defendant owned the dog. It is sufficient on this point for the plaintiff to prove that the defendant kept the dog: Wilkinson v. Parrott, 32 Cal. 102; and see Ficken v. Jones, 28 Cal. 618. 66. Scienter.-The scienter must be alleged and proved: 1 M. & S. 238; 2 Strange, 1264: Vrooman v. Lawyer, 13 Johns. 339; 2 Esp. Rep. 482; 4 Camp. Rep. 198; 1 Starkie Rep. 285; 3 C. & P. 138; Marsh v. Jones, 21 Vt. R. 378; 1 Comst. (N. Y.) 515. 67. Vicious Horse.-Defendant negligently let his horse go loose and unattended in the street of a city, where the horse kicked the plaintiff: Held, that defendant was liable, without proof that the horse was vicious: Dickson v. McCoy, 39 N. Y. 400; see, also, Norris v. Kohler, 41 Id. 42. [TITLE.] No. 369. XV. Against Physician for Maltreatment. The plaintiff complains, and alleges: I. That the defendant is, and since the plaintiff, at day of 187., has been a physician, and that the ...... in the month of .... ....., 187., employed the defendant as such, to cure him of a malady from which he then suffered, for compensation to be paid therefor, and for that purpose the defendant undertook, as a physician, to attend and cure the plaintiff. II. That the defendant entered upon such employment, but did not use due and proper care or skill in endeavoring to cure the plaintiff of the said malady, in this: the defendant did not [here state what defendant failed to do that he should have done, or what he did that he should not have done]. III. That by reason of the several premises, the plaintiff was injured in his health and constitution, suffered great pain, was weakened in body, and was obliged to and did expend the sum of ........... dollars, in endeavoring to be cured of the said sickness, which was prolonged and increased by the said unskillful and improper conduct of the defendant, to the damage of the plaintiff dollars. [Demand of Judgment.] |