Wilson v. N.Y., N. H. & H. R. Co.

• Decision Date: 27 February 1894
• Citation: 18 R.I. 491,29 A. 258
• Court: Rhode Island Supreme Court
• Parties: WILSON v. NEW YORK, N. H. & H. R. CO.

29 A. 258

18 R.I. 491

WILSON

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Rhode Island.

Feb. 27, 1894.

Certified on division from the common pleas.

Action by Thomas Wilson, administrator, etc., against the New York, New Haven & Hartford Railroad Company. Certified for decision on demurrer. Demurrer sustained to first count, and overruled as to second.

The second count of the declaration is as follows: "And also for that the defendant corporation, at Lincoln aforesaid, on the first day of March, A. D. 1892, was possessed of a certain railway locomotive, tender, and train of cars attached thereto, and was by its servants at that time propelling, driving, managing, and conducting the same upon and along a certain railway which crossed at grade a certain public highway, to wit, street in the town of Lincoln, county aforesaid; that at said Lincoln, on said last-mentioned date, the plaintiff's intestate, with fourteen others, was in a public conveyance, to wit, a sleigh drawn by four horses; that said sleigh and horses were driven, managed, and controlled exclusively and solely by one——, the servant and agent of——, the owner and proprietor of said sleigh, horses, and harness; that said driver was in no sense the agent and servant of the plaintiff's intestate; that the aforesaid crossing was a dangerous one, as the defendant corporation well knew, but the plaintiff's intestate was ignorant of its existence, and of the existence of any railroad crossing at that place; that the defendant corporation had gates at each side of said highway at said crossing to warn the public, when said gates were down and closed, that it was dangerous to cross said railway, and to notify the public, when the gates were up and open, that it was safe to cross said railway on said highway aforesaid; that at said Lincoln, on said last-mentioned date, said gates were up and open, indicating that said railway was safe to cross, and inviting said driver, with his horses, passengers, and sleigh, to cross said railway; that said driver of said sleigh, in response to said invitation, with his sleigh, horses, and passengers proceeded to cross then and there, and while in the act of crossing, and while the plaintiff's intestate was in the exercise of due care, through the defendant corporation, through its agents and servants, in having the gates at said crossing open and up, and in inviting the driver to cross, as aforesaid, when it was dangerous to do so, and through the defendant's negligence in running and controlling the aforesaid locomotive, tender, and train of cars at and on said crossing, and through the negligence of the defendant in leaving said dangerous crossing unguarded and unprotected while said sleigh as aforesaid, at Lonsdale aforesaid, on the day, month, and year last mentioned, the plaintiff's intestate was struck by said locomotive, tender, and train of cars, and was killed."

George J. West, for plaintiff. Walter B. Vincent, for defendant.

MATTESON, C. J. We think that the first count is demurrable, in that it charges negligence without setting forth in particular any act or omission of the defendant constituting negligence. As a general rule, it is necessary that a declaration should state the facts on which the supposed duty to the plaintiff was founded, and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the...