28 S.E. 733 (W.Va. 1897), Snyder v. Wheeling Electrical Co.

Citation:28 S.E. 733, 43 W.Va. 661
Opinion Judge:BRANNON, J.
Attorney:W. P. Hubbard, for plaintiff in error. John A. Howard and Melville D. Post, for defendant in error.
Case Date:November 10, 1897
Court:Supreme Court of Appeals of West Virginia

Page 733

28 S.E. 733 (W.Va. 1897)

43 W.Va. 661




Supreme Court of Appeals of West Virginia.

November 10, 1897

Submitted June 3, 1897

Syllabus by the Court.

1. A declaration for tort arising from negligence may allege the mere negligence generally, without stating the particular facts going to prove negligence, but must specify with reason[43 W.Va. 662]able certainty the main or primary act of omission or commission doing the damage; and the allegation that the defendant did the particular act causing the damage furnishes the predicate or basis for evidence of all such incidental facts and circumstances of omission and commission as fairly tend to establish the negligence of the primary act, and to plead them specially would be to plead mere evidence instead of facts.

2. Where a declaration based on negligence states a particular act as the cause of the damage, no evidence of other acts causing it can be given.

3. There must be reasonable evidence of negligence. But where a thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.

Error to circuit court, Ohio county; Paull and Hervey, Judges.

Action by Florence Snyder against the Wheeling Electrical Company. Judgment for plaintiff. Defendant brings error. Reversed.

W. P. Hubbard, for plaintiff in error.

John A. Howard and Melville D. Post, for defendant in error.


In an action on the case, Florence Snyder, administratrix of Andrew C. Snyder, recovered a judgment against the Wheeling Electrical Company for $1,000, and the company obtained this writ of error.

One error alleged is the action of the circuit court in overruling a demurrer to the declaration. The specification of its defect is that it ought to, but does not, set forth the duty and aver the neglect; and citation is made of the language in the opinion in Clarke v. Railroad Co., 39 W.Va. 732, 20 S.E. 696, that a declaration in "tort must have requisite definiteness to inform the defendant of the nature of the cause of action, and the particular act or omission co[43 W.Va. 663]nstituting the tort," and reference is made to Poling v. Railroad Co., 38 W.Va. 645, 18 S.E. 782, holding that a declaration for negligence "is good if it contain the substantial elements of a cause of action, the duty violated, the breach thereof properly averred, with such matters as are necessary to render the cause of action intelligible, so that judgment according to law and the very right of the case can be given." I think these statements are good law. Hogg, Pl. & Forms, § 140, says that it is settled as a general rule that it is not necessary to state the particular acts which constitute negligence. This is so, but we must take care not to misapply this statement. The West Virginia cases cited to sustain the rule are cases against railroads for killing stock. If a declaration allege that a railroad killed stock by negligently running a train over it, as in those cases, that would be sufficient, without more details of the circumstances of running over it; but I take it that it would not be enough simply to say that the company negligently killed a horse. You must aver the duty, and aver the existence or presence of negligence in its performance, and specify the act working damage, but need not detail all the evidential facts of negligence. You must tell the defendant, even under this general rule, that he negligently did a specific act doing harm. In other words, you may say that the defendant negligently did or did not do so and so, without detail as to the mere negligence, but you must state the acts that are the basis of liability. If the negligence cannot be otherwise charged, they must be given. As said in Berns v. Coal Co., 27 W.Va. 285, the object of a declaration is to give the facts constituting the cause of action, so they may be understood by the party who is to answer them, and by the jury and court, who are to give verdict and judgment on them; and though, in an action for negligence, it is not necessary to state with particularity the acts of omission or commission, yet, lest too loose a practice shall grow under this rule, it may be well to state the warning given in Railroad Co. v. Whittington, 30 Grat. 810, that "this rule does not justify a general and indefinite mode of declaring, admitting of almost any proof." In that case it was held not enough to state that the railroad company was working its road with cars and conducted itself so negligently in its business that it inflicted [43 W.Va. 664]severe bodily injuries, by reason of which the person died, without stating where the deceased was, or how injured. To avoid misunderstanding, it is important to add that the declaration need not state the particular facts that are not primary or main facts, but only are evidence of primary facts. When the necessary primary facts are given, then all other facts merely incidental that go to prove the primary facts may be proven without specification in the declaration. Davis v. Guarnieri, 45 Ohio St. 470, 15 N.E. 350; Ware v. Gay, 11 Pick. 106; McCauley v. Davidson, 10 Minn. 418 (Gil. 335) 422.

The declaration in this case states that the defendant operated an electric plant for the manufacture and sale of electricity, and had its wires over the streets of the city of Wheeling for the conveyance of electricity in dangerous currents, and that it was the duty of the...

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