Fox v. Denver City Tramway Co.
Fox v. Denver City Tramway Co.
Opinion of the Court
delivered the opinion of the court:
On April 20th, 1911, the plaintiff, plaintiff in error here, filed an amended complaint against the defendant, defendant in error here, alleging, in substance, that she is the widow of one Julius A. Fox, who was killed on the
Defendant demurred to the amended complaint on two grounds: 1. That it does not state facts sufficient to constitute a cause of action. 2. That it is ‘ ‘ ambiguous, uncertain and unintelligible, and particularly in failing to state specifically in what manner and respect the defendant’s agents and servants in charge of its car were guilty of negligence, and also in what manner and respect said negligence, if any, on their part was the direct and proximate cause of said accident; and also in failing to specifically allege in what manner and respect the deceased was endeavoring to board said car, and whether said car, at the timé the deceased attempted to board the same, was then and there in motion, and if so, at what speed the same was moving.” The demurrer was sustained and plaintiff elected to stand upon the amended complaint. Judgment was entered for défendant, which the plaintiff brings here for review.
Upon the authority of McGonigle v. Kane, 20 Colo. 292, 38 Pac. 367, the complaint clearly states a cause of action, and was not vulnerable to general demurrer. See also Adams Express Co. v. Aldridge, 20 Colo. App. 74, 77 Pac. 6, and Wilson et al. v. D. S. & P. P. R. R. Co., 7 Colo. 101, 2 Pac. 1. The rule applicable on this proposition is well stated in Downey v. Colorado Fuel & Iron Co., 48 Colo. 27, 108 Pac. 972, as follows:
“The rule is, if the facts alleged, with all fair and reasonable deductions which may be drawn*515 therefrom, are sufficient to state a cause of action, the complaint must be upheld as against general demurrer. Such is the settled doctrine of this court. —Insurance Company v. Bonner, 24 Colo. 222, 49 Pac. 366.”
A careful analysis of the complaint discloses that the objections urged by special demurrer are not well taken. The first assignment is that it fails to .state specifically the manner and respect in which defendant was negligent. The allegations of the complaint to this point are “that when the car so signaled by the deceased reached him he attempted to get aboard thereof in the usual manner, but the defendant, its servants, employees' or agents, well knowing that deceased was about to board said car, negligently and carelessly * * * failed to stop said car, * * * and negligently and carelessly increased the speed of said car instead of slacking it, whereby, and without any negligence on his part, deceased was violently thrown off said car; * * * that when deceased signaled to the motorman to stop said car as aforesaid he * * * was in front thereof and near the track upon which said car was running and so near to the sign above mentioned that if said motorman had stopped said car at the place as indicated by said sign, deceased would have been able to board said car thereat in the usual and ordinary manner while so stopped.” The word “attempted”, as used in the first allegation, clearly indicates a physical act, and the word “about”, as there used, considered in connection with the context, plainly means “in the act of”, no mere mental purpose or intent, for it is stated.in the same sentence that deceased “was violently thrown off said car,” thus showing actual contact with the car by deceased while attempting to board it. If it be- assumed that the defendant was guilty of negligence in failing to stop its car upon signal of the deceased at the place designated by the sign as a regular stopping place, thus affording an opportunity to board it, this was not such negligence as would support an action for injury to the person. It
The second objection is that it fails to state how defendant’s alleged negligence was the direct and proximate cause of the injury. The allegation of the act of negligence in accelerating the speed of the car is followed by this averment: “whereby, and without any negligence on his part, deceased was violently thrown off said car”, that is, the acceleration of the speed of the car is the negligence directly and specifically charged as the proximate cause of the injury of which complaint is made.
The third ground, that the manner in which deceased attempted to board the car is not alleged with sufficient definiteness, is likewise untenable. The allegation against which it is directed is that deceased “attempted to get aboard thereof (the car) in the usual manner”. The usual manner of boarding a street car may be said to be a matter of general knowledge, and in this character of case, where the accident resulted in the immediate death of the party, it is undoubtedly true that everything within the plaintiff’s knowledge has been alleged with as reasonable certainty as possible. Under the circumstances of this case, to compel plaintiff to allege whether the deceased took the initial step with the right or left foot, and simultaneously grasped the handles of the car with one or both hands, or was facing in a particular direction, would be in effect to practically require the impossible.
The last objection, that there is a failure to allege whether, at the time deceased attempted to board the car,
The following authorities are to the effect that when an allegation is in general and comprehensive terms, capable of being readily understood by defendant and not so general as to be misleading, it is not subject to the sort of objection urged: DuBois v. First National Bank, 43 Colo. 401, 403, 96 Pac. 169; National Fuel Co. v. Green, 50 Colo. 307, 313, 115 Pac. 709; Union Gold Mining Co. v. Crawford, 29 Colo, 511, 517, 69 Pac. 600; and 6 Ency. PI. & Pr. p. 271, and notes. This ride is especially applicable to the situation here presented, and the amended complaint shows a fair and reasonable compliance with it.
In the case of Adams Express Co. v. Aldridge, supra, substantially the same objections were interposed to the complaint by motion to make more specific, under § 60 Mill’s Ann. Code, and overruled. That decision is in point here, because the reasoning which would support a certain conclusion as against the motion would be equally applicable to a special demurrer interposed on like grounds, the two being essentially concurrent remedies.— Orman v. Mannix, 17 Colo. 564, 30 Pac. 1037, 17 L. R. A. 602, 31 Am. St. Rep. 340; Hall v. Cudahy, 46 Colo. 324, 104 Pac. 415; Michael v. Mills, 22 Colo. 439, 45 Pac. 429; and 6 Ency. Pl. & Pr. p. 273. The rule applicable is stated in that case, citing Wilson v. Railroad Co., 7 Colo. 101, 2 Pac. 1, and other authorities in support thereof, and may be gathered from the following quotation:
*518 “But, unless the facts which the motion demanded were within the knowledge of the plaintiff, they could hot have been stated; and to require their statement would have been to require an impossibility. The driver might have been asleep; or, instead of looking before him, or observing what was in his way, his attention might have been fixed on some object in another direction; or he might have been heedless generally, and oblivious to his surroundings. Such things as these, and other possible elements of negligence on the part of the driver, if they existed,, the plaintiff could not be supposed to know. Presumptively, it was not within her ability to furnish the specific facts for which the motion called; and any attempted explanation by her of the negligence, would have been based on conjecture. But if she had undertaken to specify particular acts of negligence, she would have been confined in her proofs to those acts; so that, in case of mistake in her allegations, she would have been driven out of court, even if her cause was meritorious. — Ry. Co. v. Younger, 10 Tex. Civ. App. 141 [29 S. W. 948] ; Wallace v. R. R. Co., [Tex. Civ. App.] 42 So. 865.”
The complaint under consideration is more direct and specific and much fuller in its allegations than the one approved in that case. Moreover, in view of the fact that this is an action by the widow, the death of whose husband occurred within a few minutes after the accident, the allegations complained of seem, upon the whole, quite as definite and certain as plaintiff could reasonably be expected or required to make. — Chicago City Ry. Co. v. Jemings, 157 Ill. 274, 41 N. E. 629.
The court erred in sustaining the demurrer to the complaint and dismissing the action. The judgment is reversed and cause remanded with directions to permit the defendant to answer as it may be advised.
Judgment reversed and cause remanded with directions.
Chief Justice Musser and Mr. Justice White concur.
Reference
- Full Case Name
- Fox v. Denver City Tramway Company
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- Published