operates engines and cars for the accommodation and transportation of passengers and freight, and was during all said times, and now is. a common carrier of passengers for hire. 3. That heretofore, to wit, on the 1st day of December, 1903, the plaintiff Myra Burgess went to the depot and station of defendant company at the town of Provence, and went aboard the passenger cars of defendant at said station, and became a passenger of defendant company, for the purpose of being carried and transported from said town of Provence to the said town of Mannsville. 4. That on said date defendant was running and operating an engine and cars, constituting the passenger train, on said line of railroad between the said town of Provence and the town of Mannsville; that defendant company, by and through its agents and employees, stopped said train at said town of Provence, and plaintiff Myra Burgess attempted to board said train; that at the time she was aboard said train, and had gotten on the steps of one of said cars, the defendant company, by and through its agents, servants, and employees in charge of said train, carelessly and negligently, and without regard to the safety of plaintiff Myra Burgess, started and moved said train in a quick, rapid, careless, and negligent manner, and thereby threw her forcibly and violently upon and against an iron railing upon said car, and upon and against other parts of said car, and thereby severely bruised her left arm above the elbow, bruised and wounded and injured her on the right side of the bowels and just above the pelvis bone, and in her head, back, bowels, organs of generation, and other parts of her body; that at the time of the infliction of said injuries as aforesaid the plaintiff Myra Burgess was pregnant, [and by reason of said injuries she has been constantly threatened with miscarriage,] 2 and has at all times been under the care of a physician; that, by reason of the careless and negligent infliction of said injuries as aforesaid, the plaintiff Myra Burgess received a great shock to her nervous system such as has impaired and will permanently impair her general health, that will shorten her life, and, together with said injuries, will cause her life to be one of continued suffering and pain. 2 A demurrer to the complaint in Choctaw etc. Co. v. Burgess, supra, shown in form No. 901, was sustained as to the allegation contained in said complaint that the plaintiff was threatened with miscarriage as a result of the injuries sustained, but in all other respects the demurrer was overruled, and judgment for the plaintiff was finally affirmed. That by reason of such injuries so produced the plaintiff Myra Burgess has constantly and continually and ever since suffered and endured great mental injury and agony. That since the infliction of said injuries as aforesaid, plaintiffs have been compelled to expend for medicines and care of a physician for plaintiff Myra Burgess the sum of $300; that by reason of the foregoing facts plaintiffs allege that the plaintiff Myra Burgess has been damaged in the sum of $25,000. [Prayer.] Cruce & Bleakmore, Attorneys for plaintiffs. FORM No. 902-By passenger, for damages caused by negligent operation of an elevator. (In Cragg v. Los Angeles Trust Co., 154 Cal. 663; 98 Pac. 1063.) [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That defendant is a corporation duly organized and existing under the laws of the state of California, and at all times herein mentioned was, and now is, the owner of, and in possession of and occupying, the building hereinafter mentioned, and as a part of the use of said building operated the elevator therein, hereinafter mentioned. 2. That on the 26th day of October, 1906, plaintiff was in the employ of defendant, and it was his duty in the service of the defendant to remove a galvanized iron barrel or can from the second floor of said building to the ground floor; that said building is a sevenstory building, on the corner of Second and Spring streets in the city of Los Angeles, county of Los Angeles, state of California; that in the performance of said duty it was necessary that the plaintiff should, and he was obliged to, enter the elevator operated by defendant in said building and place therein said barrel or can; that on said 26th day of October, 1906, about half-past 7 o'clock in the morning, as plaintiff entered said elevator to place therein said barrel or can, defendant negligently allowed and caused said elevator suddenly and unexpectedly to be abruptly or improperly started in such a manner as to, and defendant did thereby, precipitate plaintiff against the wall of the shaft in which said elevator ascended and descended, and crushed plaintiff between said elevator car and wall, breaking his jawbone, disfiguring his face, and otherwise injuring him. 3. That because of such injuries plaintiff has been compelled to employ a doctor at an expense, up to this time, of $72, and has paid more than $20 for medicines, bandages, and dressing for his wounded face, and $16 for a nurse; that plaintiff was further thereby rendered and made unable to pursue his usual or any vocation up to this time, to his loss in the sum of $75, all of which was rendered necessary and occasioned by said negligence of defendant. 4. That by reason of said negligent crushing, bruising, and disfiguring of plaintiff by defendant plaintiff has been further damaged in the additional sum of $2,000. Wherefore, plaintiff prays judgment against defendant for the sum of $2,187, and for costs of suit. [Verification.] Wellborn & Wellborn, Attorneys for plaintiff. Form of complaint in an action to recover damages for injuries to plaintiff's person, caused by the falling of an hydraulic elevator operated by defendants in their store: Treadwell v. Whittier, 80 Cal. 574, 576, 22 Pac. 266, 13 Am. St. Rep. 175, 5 L. R. A. 498. Form of complaint in an action to recover damages for mistreatment while a passenger on a boat: Mace v. Reed, 89 Wis. 440, 441, 62 N. W. 186, 187. § 376. ANNOTATIONS.-Negligence of carriers.-Actions for injuries to passengers not resulting in death. 1. Nature of action against carrier. 2. Action ex delicto.-Pleading contract as matter of inducement. 3. General negligence.-Averment of. 4, 5. Action for wrongful expulsion.-What action will be. 6. Averment as to payment or tender of fare. 7. Complaint charging gross negligence. 8. Instruction as to damages for mental suffering, etc. 9. Alleging cause of derailment of car not required. 10. Proof of derailment of car. 11. Motion for nonsuit.-Statement of grounds. 1. Nature of action against carrier.An action against a carrier for breach of contract may be for the breach or in tort for a violation of duty as common carrier: Sloane v. Southern California R. Co., 111 Cal. 668, 677, 44 Pac. 320, 32 L. R. A. 193. See Jones v. Steamship Cortes, 17 Cal. 487, 79 Am. Dec. 142. 2. Action ex delicto.-Pleading contract as matter of inducement.-When an action against a carrier sounds in tort, the allegation of the contract of carriage is regarded as mere inducement to the action to show the plaintiff's right to sue as a passenger. Therefore, in cases of this class, where the plaintiff alleges the payment of his fare and the promise of the company to carry him, and then proceeds to state the tort, and his claim for damages arising on account thereof, the action is declared to be one in tort, for the reason that the gravamen or gist of the action proceeds ex delicto on the breach of the duty owing to the public imposed by law: Canady v. United R. Co., 134 Mo. App. 282, 114 S. W. 88, 90; Denver etc. R. Co. v. Cloud, 6 Colo. App. 445, 40 Pac. 779; Head v. Georgia etc. R. Co., 79 Ga. 358, 7 S. E. 217, 11 Am. St. Rep. 434; Ames v. United R. Co., 117 Mass. 541, 19 Am. Rep. 426; Hammond v. Railway Co., 6 S. C. 130, 137, 24 Am. Rep. 467; Brown v. Railroad Co., 54 Wis. 342, 347, 11 N. W. 356, 911, 41 Am. Rep. 41. 3. General negligence.-Averment of.The following is an example of an averment of general negligence: "The defendant carelessly and negligently caused and permitted the train on which plaintiff was riding as a passenger to come in violent collision with another train of defendant's, said other train being on said Street, and on said incline as aforesaid; that said collision was occasioned without any fault on the part of the plaintiff, but by reason of the negligence as aforesaid of the defendant": Price v. Metropolitan S. R. Co., 220 Mo. 435, 119 S. W. 932, 937, 132 Am. St. Rep. 588. 4. An action for wrongful expulsion with force and violence is in effect an action for tort for breach of duty: Gorman v. Southern Pacific Co., 97 Cal. 1, 6, 31 Pac. 1112, 33 Am. St. Rep. 157. See Pittsburgh etc. R. Co. v. Reynolds, 55 Ohio St. 370, 45 N. E. 712; 60 Am. St. Rep. 706; Northern Pacific R. Co. v. Pauson, 70 Fed. 585, 17 C. C. A. 287, 30 L. R. A. 730. 5. Action in tort or on the case will lie to recover damages for wrongful expulsion: Gorman v. Southern Pacific Co., 97 Cal. 1, 6, 31 Pac. 1112, 33 Am. St. Rep. 157. 6. Averment as to payment or tender of fare. It is not necessary that the plaintiff allege strictly a legal tender of fare; it is sufficient to allege that he was ready and willing and offered to pay the defendant such sum of money as it was legally entitled to charge. Whenever performance of a duty or obligation is cast upon one party in consequence of the contemporaneous act of payment by the other, it is sufficient if the latter is ready and willing to pay when the former is ready to undertake the duty: Tarbell v. Central Pacific R. Co., 34 Cal. 616, 622. See White v. Chesapeake R. Co., 26 W. Va. 800, 805, and note 77 Am. Dec. 474. 7. Complaint charging gross negli. gence should set forth by averments that the act or omission causing the injury complained of had been wanton, or wilful: Gould v. Merrill R. & L. Co., 139 Wis. 433, 121 N. W. 161, 164, (obiter). 8. Instruction as to damages for mental suffering, etc.--Where the defendant is fairly advised by the allegations Jury's Pl.-95. of the pleading that a recovery would be sought for mental and physical suffering of a wife resulting in being carried beyond their station while with her husband as a passenger on a train, and where no exception to the petition for more specific allegations was presented to the court, it can not be said that the court erred in instructing the jury, in effect, that damages, if any, were recoverable for mental and physical suffering of the wife caused by the walk back to her station: St. Louis etc. R. Co. v. Franks (Tex. Civ. App.), 114 S. W. 874, 876. 9. Alleging cause of derailment of car not required.-No duty rests upon а plaintiff who was a passenger to allege or prove in his affirmative case the particular cause of a derailment in which he was injured, and where such allegations appear, they are treated as surplusage. He may rely upon his prima facie case without attempting to substantiate them: Hoskins v. Northern Pacific R. Co., 39 Mont. 394, 102 Pac. 988, 990, overruling views in conflict with this expression in Pierce v. Great Falls etc. R. Co., 22 Mont. 446, 56 Pac. 867. 10. Proof of derailment of a car, in consequence of which a passenger therein was injured, is ordinarily prima facie evidence of negligence on the part of the common carrier. For this reason no necessity exists for the passenger to allege the particular cause of the derailment: Hoskins v. Northern Pacific R. Co., 39 Mont. 394, 102 Pac. 988, 990. 11. Motion for nonsuit.-Statement of grounds. In an action against a railroad corporation for alleged negligence and lack of care in allowing its railroad tracks to become out of repair, the unsafe condition of which was alleged to have caused the accident in which the plaintiff was injured, the motion for nonsuit thereon was granted and judgment on appeal affirmed. The grounds of the motion were stated as follows: "On the ground that there is nothing in the derailment of a train that creates a presumption of negligence in the case of this defendant; that there is no proof that plaintiff was a passenger; that there has been no proof of the allegations of excessive speed, or negligence in respect to defective rails, and no proof of any of the particular [averments of] negligence alleged in the complaint, Form No. 903. Against common carrier by representative of a Form No. 905. By heir at law against street railway corpora- ... Form No. 906. By husband and minor children, to recover ... Page 1494 1494 1495 1496 1498 § 378. Replication. 1500 Form No. 907. In action by administrator for wrongful death 1500 § 377. COMPLAINTS [OR PETITIONS]. FORM No. 903-Against common carrier by representative of a decedent, for damages for wrongful death.-Decedent a passenger on defendant's train. [Title of court and cause.] Plaintiff complains of defendant, and for cause of action alleges: 1. [If the defendant is a corporation common carrier, allege:] That the defendant was at the times hereinafter mentioned and is a corporation created by and under the laws of this state, and was and is a common carrier of persons and property for hire, between the places hereinafter mentioned, and was the owner and in possession of the cars, train of cars, and railroad tracks hereinafter mentioned, and during all said times was, and it still is, engaged in operating said cars and trains over said tracks. |