That by reason of the injuries aforesaid plaintiff is permanently disabled, to his damage in the sum of $15,000. And plaintiff further states that by reason of the aforesaid injuries he has suffered great distress of body and mind, pain, and mental anguish, and has been caused to expend large sums of money for care and medical attention to the amount of $3,000. Wherefore, plaintiff prays judgment for the sum of $18,000 [etc.]. FORM No. 912-Averment of petition for injuries to stock caused by neglect of railroad company to fence its road, as required by general statute. (In Missouri Pacific R. Co. v. Metzger, 24 Neb. 90; 38 N. W. 27.) [Title of court and cause.] [After averring incorporation of defendant, ownership and operation of lines, etc.:] That at a point on its line of railway, not within the incorporated limits of any city, village, or town, or on any public highway, and at a point where it was the duty of the defendant company by force of the statute to erect and maintain a suitable and sufficient fence upon the sides of the defendant's railroad to prevent horses from getting upon said railroad, to wit, [here described by reference to some road-crossing or land, etc.], carelessly and wrongfully did neglect and fail to erect and maintain a suitable and sufficient fence as by law required for said purpose; that by reason of the said neglect and failure of defendant company, its agents, servants, [etc.,] the horses aforesaid, the property of plaintiff, strayed in and upon the track and right of way of the defendant, and while so upon said railroad they were, and each of them was, then and there struck and run over by the locomotive and train of the defendant and killed. [Followed with averments as to damages thereby sustained, etc.] [Concluding part.] FORM No. 913—Against railroad company, for damages for the wanton killing of stock. (In Missouri Pacific R. Co. v. Vandeventer, 28 Neb. 112; 44 N. W. 93.) [Title of court and cause.] That plaintiff is a corporation owning, operating, and managing a line of railroad through Richardson County, in this state, and that on the 4th day of February, 1886, while so operating said road, and at a Jury's Pl.-97. point thereon between the village of V. and the village of S., and at a point on said road where it was the duty of the defendant to keep its track fenced, defendant had constructed a gate for a private crossing over and upon said track, but had carelessly and negligently allowed said gate to remain unfastened, unsecured, and open, so as to allow free ingress and egress to and from said track; that during the night preceding said day, without the knowledge, fault, or negli gence of the plaintiff, three horses, the property of plaintiff, broke out of his enclosure, escaped from his premises, and passed through the said open gate onto the track of defendant, where defendant, by its agents and employees, ran an engine and train of cars over and upon said horses, and killed the same, to the damage of the plaintiff in the sum of $335. That said horses were upon the track of defendant in plain view of its agents and employees engaged in running said train, which was moving at a very rapid rate of speed; that said agents and employees negligently, wilfully, and intentionally ran over and upon said horses. That due notice of said loss was given to defendant by plaintiff prior to bringing this suit. Wherefore [etc.]. A. B., Attorney for plaintiff. § 383. ANSWERS. FORM No. 914-Defense based upon duty of the plaintiff to make [or main tain] cattle-fences. [Title of court and cause.] [After introductory part, and appropriate denials:] For a separate defense defendant alleges: paid to the plaintiff the sum of $ , a price agreed upon with the plaintiff [or that the same was allowed upon an award for damages for defendant's right of way over plaintiff's land], for making [or maintaining] the fence bordering the said lands of plaintiff and the said tracks of defendant; that it thereby became the duty of the plaintiff to make [or maintain] said fence and keep the same in repair. 2. That plaintiff has not constructed [or maintained] said fence, and, therefore, if plaintiff has suffered any damages by reason of the cattle of plaintiff straying upon the tracks of defendant, such dam ages have resulted proximately from plaintiff's own negligence, and not from any negligence of the defendant. [Concluding part.] FORM No. 915-Defense based upon trespass by animals.-Action for injuries to stock, alleged to have been killed while on defendant's track. (In Missouri Pacific R. Co. v. Metzger, 24 Neb. 90; 38 N. W. 27.) [Title of court and cause.] [After introductory part:] That at the point where the horses described in the petition of plaintiff got upon the defendant's track the defendant had erected a fence on each side of said track, and thereafter maintained said fence amply sufficient to prevent horses from getting upon said track at said point, and had also constructed and built gates at farm crossings at said point as required by the law of the state as to fencing its tracks and erecting gates at farm crossings; that plaintiff's horses trespassed upon the premises of the adjoining proprietor, upon whose premises a private farm-gate had been erected by defendant, which gate was under the control of the owner of said land, and, without any fault of defendant, its agents or servants, said gate had been left open, and through which open gate plaintiff's horses escaped, and thereby got upon defendant's track, and were injured [etc.]. [Concluding part.] For the substance of a complaint in an action for damages for personal injuries against a street railway company, the plaintiff being a guest in a wagon which was run into by a car belonging to the defendant, see Philbin v. Denver City Tramway Co., 36 Colo. 331, 85 Pac. 630, 631. Forms of complaints [or petitions] in actions for damages caused by the destruction of certain property by fire from locomotives, etc.: Jewett v. Osborne, 33 Neb. 24, 26, 49 N. W. 774, 775; Missouri Pacific R. Co. v. Merrill, 40 Kan. 404, 19 Pac. 793; Koontz v. Oregon R. & N. Co., 20 Ore. 3, 8, 23 Pac. 820. Form of answer in an action against a railroad company to recover damages caused by fire alleged to have been communicated by an engine, the property of plaintiff: Missouri Pacific R. Co. v. Cornell, 30 Kan. 35, 36, 1 Pac. 312, 313. Form of motion to make more definite and certain: Fort Scott etc. R. Co. v. Tubbs, 47 Kan. 630, 631, 28 Pac. 612, 613, (for damages by fire caused by alleged negligence of defendant). Form of instructions to the jury in an action for damages caused by fire set by sparks from a locomotive: St. Louis etc. R. Co. v. Hoover, 3 Kan. App. 577, 43 Pac. 854, 855. For forms in actions based upon the liability of common carriers of property, see chapter CVII. For defenses generally in actions for negligence in miscellaneous cases, see chapter CXI, forms 928-930. §384. ANNOTATIONS. Duties and obligations of common carriers.-The following principles in reference to the duties and obligations of common carriers have been recently expressed in a decision in which a great number of cases bearing upon the points have been exhaustively reviewed. This statement of principles deduced from the cases may aid in determining the questions which must arise in the bringing of actions against common carriers as to the correlative rights and duties between the public and such common carriers. The propositions which seem to be the best-settled law, in the absence of any countervailing statute, are thus expressed by Justice Frick of the supreme court of Utah: “(1) A railroad company in country districts, except at crossings, owes no active duty to keep a lookout for trespassers who may intrude upon its track, and it need not anticipate their presence there. (2) That it owes no duty to such trespasser, old or young, until he is actually discovered in a place of danger; and, in case of an aduit, is not liable for injuring him unless such injury is inflicted wilfully or recklessly after his danger is discovered, or in case his position is so prominent and conspicuous that it would amount to wilfulness or recklessness not to discover him and avoid injury; that in case of infants or helpless beings, while there is no active duty required to discover them, yet, when they are discovered, or where their position is such that it would amount to wilfulness or recklessness not to discover their danger, it is the duty of the railroad company after such discovery to exercise all reasonable care, in view of the conditions and circumstances, to avoid injuring them. (3) That a railroad company owes the active duty of exercising ordinary care not to injure persons who are on or near the track at places in thickly settled portions of cities, towns, and villages where persons have free access to the tracks, and at all other places where the public in any considerable numbers habitually have passed over or along the track for a considerable period of time, so as to impart notice of their use of the track to the company, or where the company expressly or impliedly permits persons to pass along or across the track at a particular place or places for a considerable period of time. (4) That when the facts are not in dispute, or where all the facts and inferences that may be deduced from them show that the intrusion in question did constitute a trespass if committed upon real estate generally, then the question is one of law, although the trespass or intrusion was upon a railroad track. In other words, if an intrusion upon real property would be pronounced a trespass as a matter of law, it will likewise be so pronounced if committed on a railroad track, and the court must say, as a matter of law, what duty is imposed upon the owner of the real estate or the railroad company in such a case": Palmer v. Oregon S. L. Co., 34 Utah 466, 98 Pac. 689, 702. Rule as to right over street railway crossings.-The rights of persons using vehicles and horses on the streets of a city, and street railway companies operating cars on the same streets, are mutual, and such persons and companies are required to use ordinary care and diligence to avoid collisions with each other. It is not negligence for a person to drive across street railway tracks wherever and whenever he may have occasion to do so, and this right of crossing the tracks is not confined to street-cars. The question of negligence in such cases depends upon the proximity or remoteness of the car, its speed, and other circumstances. It is the duty of a traveler to look out for himself, and to exercise such ordinary care as would be exercised by a reasonably prudent person under attendant circumstances. The duty imposed upon persons crossing steam railway tracks to stop, to look, and to listen is not rigidly applied to persons traveling a street used by a street railway: Philbin v. Denver City Tramway Co., 36 Colo. 331, 85 Pac. 630, 631, (for damages for personal injuries caused by negligence of street railway company). When plaintiff may recover notwithstanding his own negligence.-Plaintiff, though guilty of negligence, may still recover, if after the discovery of his peril the defendant fails to exercise ordinary care to prevent the injury, if in fact such failure of defendant was its proximate or direct cause, and if the defendant was also guilty of such conduct as implied an intent or willingness to cause the injury: Denver etc. R. Co. v. Buffehr, 30 Colo. 27, 69 Pac. 582, 585, (alleged wilful negligence of railway company); Chicago etc. R. Co. v. Crisman, 19 Colo. 30, 34 Pac. 286, 287; Denver etc. Rapid Transit Co. v. Dwyer, 20 Colo. 132, 36 Pac. 1106, 1108, (negligence of street railroad company operating steam motors). If a motorman sees, or by the exercise of ordinary care and diligence would have seen, a person or vehicle ahead of his car, and through his careless or negligent failure to apply such means as the exigencies of the case required to stop the car, a collision occurs, the company will be liable for the damages occasioned thereby: Philbin v. Denver City Tramway Co., 36 Colo. 331, 85 Pac. 630, 632, (to recover damages for personal injuries caused by negligence of street railway company); citing Davidson v. Tramway Co., 4 Colo. App. 283, 35 Pac. 920, (alleged negligence of street railway company-contributory negligence of defendant); Clark v. Bennett, 123 Cal. 275, 278, 55 Pac. 908, (negligence of street railway company); Denver etc. R. Co. v. Buffehr, 30 Colo. 27, 69 Pac. 582, 585, (negligence of steam railway company). CHAPTER CXI. 385. Code provisions §386. Complaints [or petitions] Form No. 916. For negligent maintenance of electric-light ..... Form No. 917. For damages caused by negligent breaking of Page 1530 1530 1530 1532 .... 1532 1533 1534 1534 1534 Form No. 918. For damages for personal injuries.-Negligence ..... Form No. 924. By next friend, for damages for personal in- 1535 1537 Form No. 925. For damages caused by waters from roof...... 1538 1538 mobile] . 1539 $387. Answers .. 1539 Form No. 928. Defense alleging plaintiff's own negligence.... Form No. 930. Denial of plaintiff's ownership of thing injured or destroyed 1540 388. Annotations. 1540 |