Braithwaite v. Hall

• Decision Date: 26 February 1897
• Citation: 46 N.E. 398,168 Mass. 38
• Parties: BRAITHWAITE v. HALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 38

46 N.E. 398

BRAITHWAITE v. HALL.

Supreme Judicial Court of Massachusetts, Middlesex.

February 26, 1897

The declaration is as follows: "And the plaintiff says that on the 30th day of May, 1895, while riding his bicycle on Mount Auburn street, in the city of Cambridge, in this commonwealth, and while in the exercise of due care, he was run over by the defendant's horses and carriage, negligently driven by a servant of the defendant while acting in the scope of his employment whereby the plaintiff was severely injured, made sick, put to great expense and loss of time, and whereby his bicycle was demolished."

Defendant's demurrer and answer are as follows: "And now comes said defendant, and, demurring to the plaintiff's declaration says that the said declaration and the matters therein contained in manner and form as the same are stated and set forth are not sufficient in law for the plaintiff to have his action against the defendant, for that (1) said declaration sets forth no cause of action in law against this defendant(2) said declaration nowhere alleges that the damage or injury alleged to have been incurred by this plaintiff was caused or incurred by reason of any fault or negligence or tortious act of this defendant, or for which this defendant was liable; (3) said declaration nowhere alleges that the alleged servant of said defendant was engaged at the time upon this defendant's business; (4) said declaration nowhere alleges that said plaintiff was rightfully and legally upon the public highway or anywhere else; (5) said declaration, if it states any cause of action, joins in one count two separate and distinct grounds of action.And said defendant, not waiving his aforesaid demurrer, but insisting upon the same, answering, says that he denies each and every material allegation in said plaintiff's writ and declaration contained.And, further answering, defendant says that, if said plaintiff was injured as is in said declaration alleged, said injury was caused solely through the negligence, fault, and want of due care of the plaintiff."

COUNSEL

D.D. Corcoran, for plaintiff.

John F. Simmons, for defendant.

OPINION

HOLMES J.

The demurrer must be overruled.The meaning of the declaration is plain and sufficient.Nowadays we do not require pleadings to be guarded against all the possible distortions of perverse ingenuity.The single collision which caused the damage to the...