Brothers' Adm'r v. Rutland R. Co.

• Decision Date: 20 December 1898
• Citation: 71 Vt. 48,42 A. 980
• Parties: BROTHERS' ADM'R v. RUTLAND R. CO.
• Court: Vermont Supreme Court

42 A. 980

71 Vt. 48

BROTHERS' ADM'R

v. RUTLAND R. CO.

Supreme Court of Vermont. Rutland.

Dec. 20, 1898.

Exceptions from Rutland county court; Thompson, Judge.

Action by Winifred Brothers' administrator against the Rutland Railroad Company. There was a judgment overruling a demurrer to the declaration, and defendant excepted. Affirmed.

Butler & Moloney, for plaintiff.

Button & Button, for defendant.

TYLER, J. This action is brought to recover damages for the death of the plaintiff's intestate, caused by the defendant's alleged negligence in running its train, and comes here upon demurrer to the declaration. The first point raised is that the first count in the declaration does not specify the negligent acts, and that conclusions only are stated. By familiar rules of pleading the count must allege facts from which the court can see that the defendant owed the intestate a legal duty. It is not sufficient to allege that there was a shortage of duty, and that the defendant's negligence caused the injury resulting in the intestate's death, but the negligent acts must be set out in traversable form. The allegations in the first count to which the demurrer is directed are: "And the defendant then and there managed, ran, and operated the said locomotive and the said train of cars in a negligent, careless, and unsuitable manner, and then and there placed said locomotive in the rear of said cars," etc., "and then and there proceeded to push and move said train along said track in a negligent, careless, and dangerous condition," etc., "and so negligently * * * moved and operated the said train, without giving any signal or warning," etc., "that the deceased was struck and injured." It is not contended that the allegations following the words "unsuitable manner" would not, if properly placed in the count, be sufficiently specific; but it is claimed that, the clauses being connected by the words "and" and "without," the averments following those words are placed in opposition to what precedes them, and therefore are not a recital of facts which constitute negligence, and that the averments cannot be treated as referring to and describing the negligent management of the train. We think, however, that those words may reasonably be construed as Introducing specifications of the defendant's negligent acts, and may be treated the same as if the words were, "by placing the said locomotive in the rear of said cars," etc., "and by pushing and moving the said train,"...