Dalton v. R.I. Co.
| Decision Date | 04 January 1904 |
| Citation | 25 R.I. 574,57 A. 383 |
| Parties | DALTON v. RHODE ISLAND CO. |
| Court | Rhode Island Supreme Court |
Trespass on the case for negligence by George L. Dalton against the Rhode Island Company. On demurrer to declaration. Demurrer sustained.
Argued before STINESS, C. J., and DOUGLAS and BLODGETT, JJ.
Lewis A. Waterman, for plaintiff. Henry W. Hayes, Frank T. Easton, and Lefferts S. Hoffman, for defendant.
This case comes before us on defendant's demurrer to the declaration upon the ground that it does not appear that the defective condition of the pump complained of was unknown to the plaintiff, or that, with reasonable care and diligence, said plaintiff could not have known of such defective condition. The question is whether a declaration for negligence should state that the defect on which a cause of action is based was unknown to the plaintiff. The object of a declaration is to state the case against the defendant, and the office of a demurrer is to require a sufficient statement when the declaration is deficient. The reason for this is that a defendant should not be put to the trouble and expense of a trial, possibly by an irresponsible plaintiff, unless a case is stated upon which the plaintiff, prima facie, at least, has a right to recover. In negligence cases a plaintiff's right to recover is limited by his contributory negligence and by his assumed risks. It is now common practice to negative the limitation of contributory negligence by the allegation of due care on the part of the plaintiff. In regard to assumed risks, there is a difference of opinion whether this should be regarded as a matter of defense, or a fact to be negatived in the declaration. See 5 Ency. Pl. & Pr. p. 4. In this state it has been considered, in cases between master and servant, that, since a servant entering or continuing in service under a known risk cannot recover unless some sufficient excuse is shown, he does not state a case unless he shows that he had not assumed such risk, whereby he might be precluded from recovery. If want of knowledge need not be alleged by the plaintiff, it need not be proved by him. The result would be, therefore, in holding that it need not be alleged, that a plaintiff could put in his case without reference to his knowledge of the alleged defect, and the defendant, upon showing such knowledge, not excused, would be entitled to a verdict. This, however, occasions unnecessary hardship to a defendant, when the case might have been determined on the pleadings. It is no hard rule for a plaintiff to require the averment, for, if he cannot state that he was ignorant of the defect, it must be because he knew it; and, if he knew it, and was without excuse for continuing to work in the face of it, he is without right to recover. Such a question should be settled, as far as possible, on the pleadings. With due respect to courts holding otherwise, we are of opinion that the allegation of want of knowledge is essential to the statement of a case, as much as the averment of due care by the plaintiff, and is more consonant with proper pleading and the convenience of parties than to leave it to be set up in defense. If a plaintiff must negative contributory negligence, why should he not also negative an assumed risk which his silence apparently admits?
In Kelley v. Silver Spring, 12 R. I. 112, 34 Am. Rep. 615, the doctrine of assumed risks was fully settled, and has since been followed without question. Di Marcho v. Builders, 18 R. I. 514, 27 Atl. 328, 28 Atl. 601, held that the plaintiff must state the relation of the defendant and the agent causing the injury, so that it may appear whether he was a fellow servant or not. Flynn v. International Co., 24 R. I. 291, 52 Atl. 1089, held that a declaration failing to state that the plaintiff did not know of the defect complained of as negligence was demurrable. In that case an omission of the word "not" occurred in transcribing the opinion, which should have been inserted in the sixth line. The opinion would then have read, "If the plaintiff knew of the defect, he was working under a known risk; if he did not know of it, the court could not say that the defect was not obvious, and so charge him with notice, as claimed in the demurrer." The demurrer was therefore sustained, because the declaration left open one of two possibilities— either a known or an obvious risk, without negation or excuse. It is now urged that Lee v. Reliance Mills, 21 R. I....
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Schiano v. Mccarthy Freight System Inc.
...has also held that in an action by a servant against his master the declaration must negative the issue of such a risk. Dalton v. Rhode Island Co., 25 R.I. 574, 57 A. 383. In the first trial of the case at bar the evidence failed to show that plaintiff was a servant of the defendant. Schian......
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Sheridan v. Gorham Mfg. Co.
...was not decided that the presence of such an allegation under any or all circumstances would forbid a demurrer. And in Dalton v. R. I. Company, 25 R. I. 574, 57 Atl. 383, it was held that the want of an allegation negativing the assumption of a known risk, or stating an excuse for continuin......
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Hawkins v. Leach, 9886
...of better pleading we call the attention of the bar to the following statement of Chief Justice Stiness in Dalton v. Rhode Island Co., 25 R.I. 574, at page 575, 57 A. 383, at page 383: 'The object of a declaration is to state the case against the defendant, and the office of a demurrer is t......