Younie v. Blackfoot Light & Water Co.

• Decision Date: 01 June 1908
• Citation: 15 Idaho 56,96 P. 193
• Parties: W. A. YOUNIE, Respondent, v. BLACKFOOT LIGHT and WATER CO., Appellant
• Court: Idaho Supreme Court

96 P. 193

15 Idaho 56

W. A. YOUNIE, Respondent, v. BLACKFOOT LIGHT and WATER CO., Appellant

Supreme Court of Idaho

June 1, 1908

Syllabus by the Court.

Where no demurrer is interposed against a complaint in which negligence is pleaded generally, such general plea of negligence is sufficient.

[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Negligence §§ 174-177.]

Ambiguity and uncertainty in a complaint, which states a cause of action, cannot be reached by objection to the introduction of evidence, but may be reached by special demurrer pointing out the ambiguity or uncertainty.

[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1433-1436.]

Held, that certain testimony objected to was properly admitted.

The instructions given by the court amply cover the case when applied to the evidence introduced.

Held, that the court did not err in its refusal to give certain instructions requested by the appellant.

One operating an electric light plant must exercise that reasonable care consistent with the practical operation of that dangerous business, and must exercise the utmost skill, care, and caution in its operation, and must use such care, caution, and diligence in the construction, operation, maintenance, and inspection of its plant and appliances.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Electricity, § 7.]

APPEAL from the District Court of Sixth Judicial District for Bingham County. Hon. James M. Stevens, Judge.

Action to recover damages for the careless construction, maintenance, etc., of an electric plant. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

S. J. Rich, J. H. Peterson, and A. M. Bowen, for Appellant.

In an action to recover damage for negligence, the plaintiff must allege the acts and omissions of the defendant upon which he relies, and he cannot recover on acts not alleged. (Woodward v. Navigation Co., 18 Ore. 289, 22 P. 1076; 6 Thompson on Negligence, secs. 7452, 7491; Haner v. Northern P. R. Co., 7 Idaho 305, 62 P. 1028; Georgia R. R. Co. v. Oaks, 52 Ga. 410.) Where a person charges a specific act of negligence, he is concluded thereby and cannot recover upon other ground not alleged. (Telle v. Leavenworth R. T. R. Co., 50 Kan. 455, 31 P. 1076; Marquette etc. Ry. Co. v. Marcott, 41 Mich. 433, 2 N.W. 795; Toledo etc. Ry. Co. v. Foss, 88 Ill. 552; Carter v. Kansas City, St. Joe & C. B. Ry. Co., 65 Iowa 288, 21 N.W. 607; Baltimore etc. Ry. Co. v. Lockwood, 72 Ohio St. 586, 74 N.E. 1071; Redford v. Spokane St. Ry. Co. , 9 Wash. 55, 36 P. 1085; Santa Fe, P. & P. Ry. Co. v. Hurley, 4 Ariz. 528, 36 P. 216; Politowitz v. Citizens' Tel. Co., 115 Mo.App. 57, 90 S.W. 1031; Stenger v. Buffalo Union Furnace Co., 95 N.Y.S. 793, 109 A.D. 183; Waldhier v. Hannibal & St. Joseph R. R. Co., 71 Mo. 514; Buffington v. Atlantic & P. R. R. Co., 64 Mo. 246; Chicago City Ry. Co. v. Gregg, 69 Ill.App. 77.)

Nowhere in the instruction at bar is it stated that the plaintiff must have exercised ordinary care. See Murphy v. Chicago R. L. & R. Co., 38 Iowa 539, in which the court held the instruction bad for not calling the attention of the jury to the question of contributory negligence. (McCormick v. Chicago etc. R. R. Co., 47 Iowa 345; Ribble v. Starrat, 83 Mich. 140, 47 N.W. 244; Cleveland etc. Ry. Co. v. Butler, 55 Ill.App. 594; Gamble v. Mullin, 74 Iowa 99, 36 N.W. 909; Chicago etc. R. R. Co. v. Mock, 72 Ill. 131; Phila. W. & B. R. Co. v. State, 66 Md. 501, 8 A. 273.)

G. F. Hansbrough, for Respondent.

Under a complaint alleging negligence generally, and also specifying particular acts of negligence, evidence of any other kinds of negligence is admissible; the general allegation being sufficient, the particular charges being surplusage, should not affect the reception of evidence. (1 Estee's Pleadings, 4th ed., sec. 1815; Edgerton v. New York & Harlem R. R. Co., 35 Barb. 389; affirmed, 39 N.Y. 227; Cunningham v. Railroad Co., 4 Utah 206, 7 P. 795.) As a rule, negligence may be pleaded generally. It is an ultimate fact and not a conclusion of law. (McGonigle v. Kane, 20 Colo. 292, 38 P. 367; House v. Meyer, 100 Cal. 592, 35 P. 308; Bliss on Code Pleadings, 3d ed., sec. 211a.)

Ambiguity and uncertainty in a complaint which states a cause of action, but not with that certainty contemplated by the code, cannot be reached by an objection to the introduction of evidence under the complaint, but only by special demurrer, pointing out the ambiguity and uncertainty complained of by the defendant. That negligence is not alleged with sufficient particularity can only be raised by special demurrer, and it is too late to raise the question after answer. (Naylor v. Vt. Loan & Trust Co., 6 Idaho 251, 55 P. 297; Hobson v. New Mexico A. R. Co., 2 Ariz. 171, 11 P. 545; Denver Consol. Electrical Co. v. Lawrence, 31 Colo. 301, 73 P. 39; Snyder v. Wheeling Electric Co., 43 W.Va. 661, 64 Am. St. Rep. 922, 39 L. R. A. 499, 28 S.E. 733; House v. Meyer, 100 Cal. 592, 35 P. 308; Louisville N. A. & C. Ry. Co. v. Berkey, 136 Ind. 181, 35 N.E. 3; Mack v. St. Louis K. C. & M. Ry. Co., 77 Mo. 232; Gulf C. & S. F. R. Co. v. Washington, 49 F. 347, 1 C. C. A. 286; Rogers v. Truesdale, 57 Minn. 126, 58 N.W. 688; Senate v. Chicago, M. & St. Paul Ry. Co., 57 Mo.App. 223; King v. Oregon Short Line Ry. Co., 6 Idaho 306, 55 P. 665, 59 L. R. A. 209.)

The operator of an electric plant must exercise that reasonable care consistent with the practical operation of the business which would be observed by reasonably prudent persons under like circumstances, increasing the care with any change in conditions likely to increase the danger, and having due regard to the existing state of science and of the art in question, and must exercise the highest skill, care and caution, and utmost diligence and foresight in the construction, maintenance and inspection of its plant and appliances which is attainable with the practical operation of its plant. (Brush Electric Co. v. Lefevre (Tex. Cr. App.), 55 S.W. 396; Denver Consol. Electric Co. v. Lawrence, 31 Colo. 301, 73 P. 39; Caglione v. Mt. Morris Electric Co., 56 A.D. 191, 67 N.Y.S. 660; Ahern v. Oregon Telephone Co., 24 Ore. 276, 33 P. 403, 35 P. 549, 22 L. R. A. 635; Eaton v. City of Weiser, 12 Idaho 544, 118 Am. St. Rep. 225, 86 P. 541; Mitchell v. Charleston Light & Power Co., 46 S.C. 146, 22 S.E. 767, 31 L. R. A. 577.)

All of the instructions must be based upon the evidence rather than on the pleadings, and the instructions given for both parties must be construed together, and if they state the law correctly as a whole, any error appearing in one series will be deemed corrected by the other. (State v. Corcoran, 7 Idaho 220, 61 P. 1034; People v. McDowell, 64 Cal. 467, 3 P. 124; Hughes' Instructions to Juries, sec. 71, and cases cited.)

SULLIVAN, J. Ailshie, C. J., concurs. Stewart, J., did not sit at the hearing and took no part in the decision of the case.

OPINION

SULLIVAN, J.

This action was brought to recover damages for the loss of a team and harness alleged to have been caused by the negligence and carelessness of the defendant corporation, in negligently, and carelessly failing to exercise and use proper care, diligence, skill and material in putting up, operating, inspecting and maintaining its electric light plant and system of appliances and wires connected therewith, and dangerously and negligently constructing and putting in the plaintiff's livery barn said dangerous and defective system of wires, without proper fuses or having the wire properly insulated and fastened.

The defendant denied the material allegations of the complaint, and set up as a further defense that the damage was caused by unavoidable accident and by the negligence of plaintiff himself. The cause was tried by the court with a jury, and the jury returned a verdict in favor of the plaintiff for $ 360 and judgment was entered for that amount. The defendant corporation moved for a new trial, which motion was denied by the court, and this appeal is from that order.

Numerous errors are assigned on which a reversal of the judgment is asked. Many of the errors refer to the admission of certain testimony and the refusal of the court to strike out certain evidence, the contention of the appellant being that all of this testimony was not within the issues made by the pleadings, and immaterial and irrelevant for that reason. The basis of this contention is that the complaint sets forth some particular acts of negligence, and it was error to admit evidence of other negligent acts on the part of the defendant.

In order to fully present this matter, it will be necessary to set forth some of the allegations of the complaint.

After alleging the corporate existence of the appellant, it is alleged that said appellant in conducting its electric light and electric power business, had erected a receiving and distributing plant, and had strung poles along the streets and alleys of the village of Blackfoot, and strung upon the said poles a system of wires, appurtenances and appliances charged with a certain dangerous and life-destroying fluid and current, known as electricity; that in January, 1895, the said corporation, "its agents, servants and employees negligently and carelessly constructed a system of wires and electric lights in plaintiff's livery barn in said village, for the purpose of lighting said barn, and negligently and carelessly attached said system of wires and lights to said defendant's wires strung along the streets of said village, and negligently and carelessly failed and neglected to exercise and use proper care, diligence, skill in putting up said plant and selecting material therefor, and in operating, inspecting and maintaining...