Steffe v. Old Colony R. Co.

• Decision Date: 06 May 1892
• Citation: 30 N.E. 1137,156 Mass. 262
• Parties: STEFFE v. OLD COLONY R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 262

30 N.E. 1137

STEFFE v. OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 6, 1892

COUNSEL

Geo. Fred. Williams and Geo W. Anderson, for plaintiff.

H Benton, Jr., for defendant.

OPINION

ALLEN J.

The defendant demurred to the declaration, and in support of the demurrer contends that the first count is defective, because it does not state in what the alleged negligence of the brakeman Thompson consisted, or in what way his alleged incompetence caused the injury complained of. The allegations on this point, in substance, are that by reason of the negligence and incompetence of Thompson, then in defendant's employ as a brakeman, and having charge or control of a train at that time moving, etc., the plaintiff was caught between two moving trains, and was hurt. The above ground of objection is not open under the demurrer, because it is not specially pointed out, as required by Pub.St. c. 167, § 12. If this objection had been specially pointed out, the plaintiff might, if so advised, have easily avoided it by amending his declaration. In a demurrer which goes to the whole ground of action, or to the whole defense stated in the answer, it is sufficient to aver the cause in the general words of the statute. Proctor v. Stone, 1 Allen, 193; Chenery v. Holden, 16 Gray, 125. But where mere defects or omissions in the form of statement are relied on, they must be specially pointed out. Suffolk Bank v. Lowell Bank, 8 Allen, 355; Train v. Disinfecting Co., 144 Mass. 523, 11 N.E. 929; Windram v. French, 151 Mass 547, 24 N.E. 914. The defendant's objection falls within the latter class; and without considering whether, if properly taken, the objection would have weight, it is clear that the defendant cannot avail itself of a merely technical ground of objection, without complying with the technical requirement of the statute. The only ground of objection specially pointed out is that the declaration does not set forth when notice of the time, place, and cause of the injury was given. The averment is that the plaintiff "duly" gave such notice. This is enough. Com. v. Chase, 127 Mass. 7, 13; Pub.St. c. 167, § 2, cl. 3. See, also, form of declaration, "Indorsee against Indorser," Pub.St. p. 977.

The notice was signed, "Frank Steffe, by Geo. Fred Williams his Attorney;" and no evidence was offered that it was given by direction of the plaintiff, or that Williams was in fact authorized to sign and serve it. The defendant objected to its admission in evidence. But no formal proof was necessary to show that Mr. Williams was an attorney at law, and the declaration is signed by him. The notice is the first step in the legal proceedings taken with a view to recover damages, and where a notice is given purporting to be for the person injured, by an attorney at law, and especially by one who afterwards represents the plaintiff in his action, if express authority to give the notice is necessary, (respecting which see Taylor v. Woburn, 130 Mass. 494; Rob. & W.Employ.Liab. 317 [156 Mass. 264] et seq., 481,) it may be presumed that he had it, in the absence of anything to show the contrary. His declaration that he had authority, or his assumption of authority, is prima facie sufficient. Bank v. Fellows, 28 N.H. 302; Bridgton v. Bennett, 23 Me. 420; Boom Corp. v. Lamson, 16 Me. 224; Proprietors v. Bishop, 2 Vt. 231; rule 2, Super Ct. There was sufficient evidence for the jury that the plaintiff was in the exercise of due care. The evidence tended to show that it was customary to examine trains in motion, and that the plaintiff was inspecting such a train; that the other train came upon him unexpectedly and rapidly, without such warning or signal as he might well expect to have; that his duty called upon him to work in dangerous places, where it would be careless for ordinary persons to go; and that there was a brakeman upon the coming train who, according to the usual custom and in the proper discharge of his duty, would either slacken the speed of the train, or give sufficient...