necessity of averring negligence in permitting the fire to escape from the right of way. The better view seems not to require an express allegation of negligence in this regard.55 In Indiana, however, the courts in numerous holdings have taken and maintained the position that the complaint should aver negligence in permitting the fire to escape. But where this is charged against the railroad company in the first instance the courts in that State hold that it is not necessary for one whose premises are not contiguous to the right of way to aver expressly that the fire negligently escaped from the intervening land.57 Faulty construction of the locomotive or want of repair is sufficiently charged by an allegation that the engine was so negligently, carelessly, and insufficiently constructed and equipped as to emit and throw out large sparks of fire.58 An allegation that defendant, through its employés in the use of an engine, was careless and negligent in the operation of its railway, has been held not sufficient to support a finding of negligence in the use of a defective spark arrester." Proof that inferior coal was used by a railroad company is inadmissible under an allegation of negligence in failing to provide necessary appliances for preventing sparks. It is not improper to allege and ask recovery in a single paragraph for damages to both personal prop set fires along the road, both before and after the injury complained of, is admissible: Northern &c. R. Co. v. Lewis, 51 Fed. Rep. 658; s. c. 2 C. C. App. 446; 7 U. S. App. 254. 55 Haugen v. Chicago &c. R. Co., 3 S. Dak. 394; s. c. 53 N. W. Rep. 769. Though a complaint alleging that defendant so negligently and carelessly managed a fire in a locomotive that it came upon plaintiff's premises does not refer to rubbish on the right of way as an agency in spreading the fire, recovery may be had for a fire communicated from the engine to the rubbish, and so spread to plaintiff's premises: Brush V. Long Island R. Co., 158 N. Y. 742; s. c. 53 N. E. Rep. 1123; aff'g s. c. 10 App. Div. (N. Y.) 535; 42 N. Y. Supp. 103. Louisville &c. Co. v. Roberts, 13 Ind. App. 692; s. c. 42 N. E. Rep. 247; Wabash R. Co. v. Schultz, 30 Ind. App. 495; s. c. 64 N. E. Rep. 481. Indiana &c. R. Co. v. Adamson, 90 Ind. 60; Indiana &c. R. Co. v. McBroom, 91 Ind. 111. "Wabash R. Co. v. Lackey, 31 Ind. App. 103; s. c. 67 N. E. Rep. 278. 58 Solum v. Great Northern R. Co., 63 Minn. 233; s. c. 65 N. W. Rep. 443; Smith v. Chicago &c. R. Co., 4 S. Dak. 71; s. c. 55 N. W. Rep. 717; Texas &c. R. Co. v. Hains (Tex. Civ. App.), 26 S. W. Rep. 873. In an action for injury caused by a locomotive setting out a fire, a special answer that the spark-arrester was of the most approved kind was not inconsistent with a general verdict for plaintiff, other answers showing the verdict was based on its defectiveness for want of repair: Chicago &c. R. Co. v. Gilmore, 22 Ind. App. 466; s. c. 53 N. E. Rep. 1078. Evidence that the spark-arrester upon a locomotive engine was defective is admissible under the averment that the defendant "so negligently and carelessly managed a fire which it intentionally kindled and maintained in a certain locomotive that the said fire came into and upon the said premises of the plaintiff": Brush v. Long Island R. Co., 10 App. Div. (N. Y.) 535; s. c. 42 N. Y. Supp. 108. 59 Missouri &c. R. Co. v. Garrison, 66 Kan. 625; s. c. 72 Pac. Rep. 225. 60 Galveston &c. R. Co. v. Rheiner (Tex. Civ. App.), 25 S. W. Rep. 971. erty and real estate injured by fire set out by locomotive, where the injury to both was caused by the same wrongful act."1 § 7499. Allegation of Prudence in Guarding against Fire.—A complaint against a railroad company for injuries from fire negligently allowed by it to spread to plaintiff's lands, destroying his crop and fences and burning the soil, need not specially aver prudence and care on the part of the plaintiff in guarding against fire, notwithstanding the combustible character of the property, but the general allegation that he was without fault is sufficient, unless the facts stated show him guilty of negligence." 62 § 7500. Allegation as to Contents of Building Destroyed by Fire. -It is not necessary to set out with a great particularity the contents of a building destroyed by fire wrongfully set out by a locomotive, and it has been held that a complaint alleging the destruction by fire of plaintiff's barn together with the hay, corn, and fodder therein, without stating the quantity thereof, was sufficient upon a motion in arrest.63 64 § 7501. Fire Set Out by Locomotive must be Proximate Cause. -Under an oft-repeated rule prevailing throughout the law of negligence, it is the duty of the pleader to show by sufficient allégations that the fire set out by the locomotive was the proximate cause of the loss suffered by plaintiff. It has been held that the complaint did not show that the sparks setting out the fire were the proximate cause of the fire by an allegation that by the force with which they were thrown out by the "locomotive and the wind" they were thrown and carried upon and against the building set on fire, since the word "extraordinary," necessary to make the wind the proximate cause, cannot by construction be inserted.65 61 Chicago &c. R. Co. v. Kern, 9 Ind. App. 505; s. c. 36 N. E. Rep. 381. 62 Chicago &c. R. Co. v. Smith, 6 Ind. App. 262; s. c. 33 N. E. Rep. 241. 63 Hoskison v. Central Vermont R. Co., 66 Vt. 618; s. c. 30 Atl. Rep. 24; 61 Am. & Eng. R. Cas. 478. 4 See ante, § 7457. Allegations that sparks and coals of fire escaped from a passing engine through carelessness and negligence of a railroad company, and came in contact with dry grass and rubbish on the right of way, from which the fire escaped and ran across the intervening country and burned the plaintiff's cranberry marsh,—are sufficient to admit proof of the attending circumstances of the fire, and that the burning of the marsh was a natural and probable result of the fire: Marvin v. Chicago &c. R. Co., 79 Wis. 140; s. c. 47 N. W. Rep. 1123; 11 L. R. A. 506; 45 Am. & Eng. R. Cas. 540. Cincinnati &c. R. Co. v. Smock, 133 Ind. 411; s. c. 33 N. E. Rep. 108. $ 7502. Averment of Ownership of Property Injured by Fire. -Ownership of the property or premises injured by fire must be alleged. It has been held a sufficient compliance with this rule to aver that plaintiff was seized and possessed and the occupant of the land injured by fire from defendant's locomotive, and to designate such lands as the premises of the plaintiff." $7503. Negligent Construction of Roadbed Causing Overflow.-A complaint in an action against a railroad company for injuries caused by an overflow of water has been held sufficient to withstand a general demurrer which alleged that the damages were caused solely by the negligent and unskillful manner in which the roadbed was constructed, and by the obstruction of the natural drain occasioned through the negligence and carelessness of defendant in the construction of the roadbed.67 § 7504. Negligent Construction of Ditches.-A general allegation of a railroad company's negligence in constructing its ditches so as to cause surface waters to collect on the land of a neighboring proprietor and damage his crops, although open to a motion to make more definite and certain, is good as against a demurrer.68 ARTICLE II. PLEADINGS IN ACTIONS AGAINST CARRIERS. SECTION 7509. Right of passenger on train should be averred. SECTION 7515. Breach of duty need not be averred. 7510. Injuries received in boarding 7516. Allegation of service of notice and alighting from train. 7511. Refusal to stop train at station. 7512. Passengers injured while riding on platform. 7513. Ejection of passengers. 7514. Averment that wrongful act of servant was within scope of injury. 7517. Not necessary to allege that § 7509. Right of Passenger on Train should be Averred.-Owing to the fact that the law imposes a varying measure of responsibility upon the carrier, dependent on whether the injured person was right MacDonald v. New York &c. R. Co., 23 R. I. 558; s. c. 51 Atl. Rep. 578. 67 Borchsenius v. Chicago &c. R. Co., 96 Wis. 448; s. c. 71 N. W. Rep. 884. es Fremont &c. R. Co. v. Harlin, 50 Neb. 698; s. c. 70 N. W. Rep. 263: 36 L. R. A. 417. fully on the train or a trespasser, it is of first importance that the nature of the relation between the parties should be set out;1 and a failure to state affirmatively that the injured person was rightfully upon the company's cars will render the complaint fatally defective.* This requirement is especially necessary where the person received his injuries while travelling on a freight train, in which case he should expressly plead the facts creating the relation of carrier and passenger, whether by established user, rules and regulations of the company, or by the invitation and permission of the conductor." Under these rules an allegation in a complaint against a street railroad company for injuries, that plaintiff boarded the car with the intention of becoming a passenger, has been held not equivalent to an allegation that he was a passenger, since the law does not concern itself with a mere intent not evidenced by an outward act. The decision is an example of over-refinement in the construction of pleadings peculiar to the courts of Missouri. Elsewhere it has been held that proof that plaintiff was a United States mail agent on defendant's car in charge of the mail, may be made under the allegation that he was a passenger. Likewise an allegation in an action for personal injuries that defendant had received plaintiff on its car as a passenger at the time of the injury is sustained by evidence that plaintiff, with others, approached the car, which was standing to receive passengers, and that she had one foot on the running board of the car and had taken hold of an upright stanchion and was in the act of raising herself to a seat when by a sudden start of the car she was thrown 1A complaint for injuries received in a collision between freight trains on one of which plaintiff was riding, alleging that he got on with the conductor's permission, but not that he paid or tendered any fare, is demurrable: Powell v. East Tennessee &c. R. Co. (Miss.), 8 South. Rep. 738. An allegation in a declaration against a street-car company, that the plaintiff was "on" a car, is insufficient to show any duty of the company toward him: Breese v. Trenton Horse R. Co., 52 N. J. L. 250; s. c. 19 Atl. Rep. 204; 41 Am. & Eng. R. Cas. 230. 2 Chicago &c. R. Co. v. Mehlsack, 44 Ill. App. 124; Pennsylvania Co. v. Dean, 92 Ind. 459; Whitehead v. St. Louis &c. R. Co. 22 Mo. App. 60; s. c. 5 West. Rep. 84. 3 It being averred in a petition to recover damages for the death of plaintiff's intestate that the intestate boarded a train "usually em ployed in the transportation of freight, and commonly known as a 'freight train,' and that defendant's servants, knowing that he was on the train, permitted him to remain on it until it passed two local stations," it must be inferred that he was on a freight train without right, and by the mere sufferance of defendant's servants; there being no averment that he paid fare or had any right on the train: Dalton v. Louisville &c. R. Co. (Ky.), 56 S. W. Rep. 657. 'Smith v. Louisville &c. R. Co., 134 Ind. 394; s. c. 24 N. E. Rep. 753. But see Whitehead v. St. Louis &c. R. Co., 99 Mo. 263; s. c. 11 S. W. Rep. 751. backward to the pavement and injured. The allegation that the plaintiff was admitted as a passenger on one of defendant's cars is not open to the objection that it alleges a conclusion. It would seem that the pleader, having alleged that the injured person was properly a passenger, need not go further and state the points between which he was being carried at the time of the injury; but where the plaintiff does allege that he was a passenger between two named stations, he will be bound thereby, and proof showing that he was a passenger between two other stations between which the first two are intermediate has been held a fatal variance. An averment that a carrier's servant carelessly and negligently caused the passenger to enter a train for which she had a ticket given her by mistake, should also allege the knowledge of the servants of the carrier that the passenger did not desire to take passage on the train indicated on the ticket she held.10 § 7510. Injuries Received in Boarding and Alighting from Train. -Where injuries are received in an attempt to board a train at a place other than a stopping place for the train, the complaint should allege that the train was stationary, at the time the attempt to board the car was made. Thus, an averment that the train was a short distance south of where the defendant's road crossed another road when the plaintiff attempted to board it has very properly been held not equivalent to an averment that the train was at rest, notwithstanding a statutory requirement that trains should be brought to a full stop before crossing the tracks of an intersecting road, as the train might have been going south or might have been more than a hundred feet away, the distance required by statute for trains to come to a full stop.11 Where the injuries complained of were received in alighting from the train while in motion at the command of the conductor, the pleader should aver that the conditions were not proper for the persons to get off; an allegation that the defendant's servant recklessly and wantonly or intentionally caused the person to leave the cars while in motion is not sufficient.12 So, an averment that the plaintiff was a passenger on defendant's train and that by the negligence of the conductor he was induced and directed to step off the train before it reached the platform, the conductor telling him he was at the right place, and 'Washington &c. R. Co. v. Patterson, 9 App. (D. C.) 423; s. c. 25 Wash. L. Rep. 36. Ohio &c. R. Co. v. Croucher, 132 Ind. 275; s. c. 31 N. E. Rep. 941. Wabash &c. R. Co. v. Friedman, 146 Ill. 583; s. c. 30 N. E. Rep. 353; 34 N. E. Rep. 1111; rev'g s. c. 41 Ill App. 270. 10 Scott v. Cleveland &c. R. Co., 144 Ind. 125; s. c. 32 L. R. A. 154; 43 N. E. Rep. 133. 11 North Birmingham St. R. Co. v. Liddicoat, 99 Ala. 545; S. C. 13 South. Rep. 18. 12 Jefferson v. Birmingham R. &c. Co., 116 Ala. 294; s. c. 22 South. Rep. 546; 38 L. R. A. 458. |