Louisville & Portland Canal Co. v. Murphy
| Decision Date | 22 May 1872 |
| Citation | 72 Ky. 522 |
| Parties | Louisville & Portland Canal Company v. Murphy, administrator, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
SPEED & BUCKNER, T. B. FAIRLEIGH, JAMES SPEED, For Appellant,
Shearman & Redfield on Negligence, sec. 345, note 5; secs. 472, 10, 384, 392, 11, 48.
Act incorporating appellant, Sess. Acts, 1825, p. 167.
Revised Statutes, 2 Stanton, 510.
2 Met 146, Chiles v. Drake.
3 Sel 498, City of Buffalo v. Holloway.
8 Bush 220, Commonweath v. Cook.
2 Duvall, 576, Board Int. Imp. of Shelby County v. Scearce.
8 Bush, 397, Roots v. Merriwether.
16 Barb. 94, Van Schaik v. Winne.
16 B. Mon. 577, Kountz v. Brown.
14 B. Mon. 83, Hill v. Wintersmith.
25 Barb. 600, Brooks v. Buffalo.
57 Penn. 172, Glassy v. Hestonville.
45 N.Y. 129, Requa v. The City of Rochester.
| 2 Chitty's Pleading, 213. | Code, section 116. |
| 6 American R. 52. |
JACKSON & PARSONS, E. Y. PARSONS, For Appellee,
Myers's Civil Code, sec. 646, amend. Feb. 2, 1866; secs. 161, 368, 879.
7 Bush, 235, L., C. & . L. R. R. Co. v. Mahony's adm'x.
1 Duvall, 102, 103, Newton v. Prather.
3 Met. 29, Dodds v. Combs.
2 Met. 88, Riggs v. Maltby.
5 Bush, 206, Slater v. Sherman.
1 Chitty's Pleading, 214, 224, 222, 234, 231.
2 Met. 149,Chiles v. Drake.
1 Bibb, 179, Hubbard v. Prather.
4 Chitty's Blackstone, side pp. 199, 200.
2 Duvall, 577.
47 Penn. St. 305, Phil. & Reading R. R. Co. v. Spearan.
22 Ill. 271, Galena & Chicago R. R. Co. v. Dill.
16 N. Y. Rep. 476, Roler v. N. Y. Central R. R. Co.
32 Barb. 169, Bernhardt v. Rensselaer & Saratoga R. R. Co.
24 Howard's Pr. 176-7, Keller v. N. Y. Central R. R. Co.
59 Penn. St. 263-4, Penn. R. R. Co. v. Barrett.
19 Conn. 566-9, Beers v. Housatonic R. R. Co.
17 Ill. 519, Galena & Chicago R. R. Co. v. Yarwood.
Lucretia Murphy, a little girl about five years of age, whose parents resided near the Louisville & Portland Canal, while crossing a bridge belonging to the Louisville & Portland Canal Company fell from the bridge into the water below and was drowned. The child at the time of the unfortunate accident was attempting to follow her sister, only two years older than herself, who had been sent on an errand by the mother to a grocery-store on the opposite side of the canal from where they lived. This bridge was constructed by the company many years since, and, as the proof conduces to show, for its own convenience, but had been continuously used not only by the company but the public generally for nearly thirty years prior to the time the child lost her life. The company during this period kept the bridge in repair at its own expense and permitted it to be used all the time as a public thoroughfare. An iron railing was erected on each side of this bridge as a protection to vehicles and travelers in crossing, and about three or four months previous to the accident several of the upright pieces of iron had been broken out, leaving an opening of some two and a half feet in the railing on the north side of the bridge, and from this opening (the weight of the testimony shows) the child fell into the canal. The act of incorporation imposes no duty on the company to build or keep in repair any bridges, but it was organized only to construct and operate a canal around the falls of the Ohio River, within this state. All the witnesses both for the appellee and appellant who were examined as to the condition of the bridge say " that it was a good, sound, and safe bridge for all the purposes of travel by persons capable of exercising ordinary care and prudence."
The present appellee, G. W. Murphy (the father of the child), qualified as her administrator, and instituted the present action under the statute enacted and approved March 10, 1854, authorizing the personal representative of one whose life has been lost or destroyed by the willful neglect of another person or persons, company or companies, corporation or corporations, their agents or servants, etc., to institute an action and recover punitive damages for this loss of life, etc. A verdict and judgment thereon was rendered against the appellant for two thousand dollars. The petition alleges the existence of the corporation, the death of the child, and the administration upon her estate by the appellee. It is further alleged " that by reason of and in consequence of the willful neglect of said corporation, defendant, its agents, servants, and employees, in and about the management and control of the bridge belonging to said company, which bridge spans the canal used and controlled by said company, and extends from the lower terminus of what is called Bridge or Eighteenth Street to a point nearly opposite what is known as Elm-Tree Garden, in the city of Louisville, Ky., and in and about the keeping of said bridge in proper repair, the life of his intestate, Lucretia Murphy, was lost and destroyed; wherefore he brings this suit and prays judgment," etc.
A general demurrer was filed to this petition and overruled, to which an exception was taken, and is one of the errors complained of. The Code of Practice requires the pleader to state in ordinary and concise language the facts constituting the cause of action; and while the ancient forms of pleading are abolished by its provisions, still every fact necessary to enable the plaintiff in the action to recover must be alleged, and every essential averment required to make a declaration good at common law upon general demurrer must be made in the petition under our present system of pleading. The facts must be alleged, so as to enable the opposite party to know what is meant to be proved, and also that an issue may be formed in regard to the subject-matter of dispute, and to enable the court to pronounce the law upon the facts stated. (1 Chitty's Pleading, 213.) The dry allegation of the facts in the petition, without setting forth the evidence of the truth of the statements made, is all that is requisite. (1 Chitty's Pleading, 224.)
Although the gist of this action is the alleged willful negligence of the defendant in causing the death of Lucretia Murphy, other facts must be stated in order to maintain it. Negligence is a question of law as well as fact, and the mere allegation that A. lost his life by the willful neglect of B. is no such statement of facts as will enable the court to determine whether the party charged with the neglect is liable or not. The question then arises, does the allegation " that the defendant was the owner of the bridge and failed to repair it" authorize the court to assume that the plaintiff's intestate had the right to pass over it, and also imply a duty on the company to keep it in repair, or subject itself to damages by reason of this omission? Where the law imposes a public duty it is unnecessary in pleading to allege it, or where upon a state of facts presented a duty necessarily arises by implication it need not be stated.
In an action against an incorporated turnpike company for public use, an allegation that by reason of the willful negligence of the company's servants and agents in failing to keep its bridge in repair the plaintiff's intestate had lost his life, etc., would be good, as the act of incorporation requires that such duties shall be performed. In the present case the act of incorporation confers no right or power on the company to construct bridges for public use, and no duty to repair arises from the mere fact of ownership, unless this obligation is to be implied in every case where such an improvement is made by either individuals or corporations for their private purposes. We perceive no reason why in such a case, with an improvement erected for private use, an individual or corporation may not permit the entire decay of the structure without incurring any liability for injuries sustained therefrom by others, in the absence of an allegation of a special right to pass, and an agreement on the part of the owner to keep it in repair. Certainly the right to the use of the way must be alleged, and it would be safer also to allege the agreement to repair.
In the case of Casey v. Mann (5 Abbott, N. Y.) it was alleged that the defendant had failed to keep a certain stairway attached to a building owned by him in repair, and the same had been provided by the defendant for the access of the residents of the premises to a back yard, and the plaintiff was entitled to its use; that the defendant as owner was bound to keep the premises in good repair, but had neglected and refused to do so, on account of which the plaintiff had sustained injuries (specifying them). It was held that this petition was bad on demurrer, as the averment that the plaintiff was bound to repair was a mere conclusion of law, it appearing from the petition that the property was in the possession of the tenants, and not the owner.
The law will also presume negligence from the facts stated, as in the case of Chiles v. Drake (2 Met. 146), where the injury complained of was the killing of plaintiff's intestate. It was alleged that he was shot and killed by the willful neglect of the defendant. It was held on demurrer that the petition was good, as the facts alleged constituted willful negligence.
In this case it may be conceded that the bridge of the appellant was out of repair, and still the cause of action is not made out, unless it also appears either that the bridge was a part of a public thoroughfare under the control of the appellant, or, if a private bridge, that the appellee's intestate had been licensed to travel over it under an agreement with the owners to keep the same in repair.
The petition is not defective for the reason insisted upon by appellant'...
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