Page images
PDF
EPUB

That the said defendants are a corporation, duly organized under the laws of the State of New-York.

That the said defendants are engaged as common carriers of passengers by railroad, for hire, from the city of Troy to Eagle Bridge, in the town of Hoosick, in said county of Rensselaer, a distance of about twenty-three miles, and from the said Eagle Bridge to the said city of Troy, upon their cars, drawn by locomotive engines, and have been such common carriers from the 1st day of February, 1852, hitherto.

That on or about the 21st day of April, 1852, this plaintiff entered into one of the passenger cars of the said defendants, at Eagle Bridge aforesaid, for the purpose of being transferred and carried by said defendants in said car from the said Eagle Bridge to the said city of Troy, and that he so entered with the knowledge and assent of said defendants, for the purpose aforesaid, and then and there became and was a passenger on board the said cars of said defendants; and after the said defendants had carried this plaintiff as such passenger about the distance of one mile in said car upon their said road, for the purpose of taking him to Troy aforesaid, the said defendants, without any lawful cause, with great force and violence, and at a place other than a usual stopping place for said defendants, and not near any dwelling-house, ejected and turned him, this plaintiff, out of and from said car, and then and there declined and refused to carry or further transport him on their said road, and greatly injured this plaintiff in his person, and that by means of the premises this plaintiff has sustained damages to the amount of $1,000.1

1 This complaint contained a further and separate statement of a cause of action, for the same transaction, which I have omitted, inasmuch as such duplication of the same cause of action has been repeatedly held to be improper. (See Pleadings, 351, 352, and cases there cited.)

Wherefore the plaintiff demands judgment against the defendants for the same, with costs.

PIERSON, BEACH & SMITH,

Plaintiff's Attorneys.

This second statement alleged the purchase of a ticket by the plaintiff some days previous, and the implied agreement (alleged in the complaint as an express agreement) of the defendants to carry the plaintiff, and failure to do so that day by reason of the defendants' road being out of repair; that the plaintiff afterwards got on the cars and attempted to be carried through on the same ticket; and refusing to pay the fare when demanded, the conductor ejected him, as above stated. It is to be observed, in regard to this, that it is entirely unnecessary, in a pleading, thus to anticipate the defendants' answer. The complaint will be sufficient if it show a prima facie cause of action, and the plainliff is not bound to negative a possible defence. (See Pleadings, 329, and cases there cited.) Indeed, it has been held that he cannot thus anticipate a defence, as, for example, the statute of limitations, and set up in his complaint matters to avoid it. (Butler v. Mason, 5 Abbott, 40.)

Judged by these rules, the complaint in the text would be entirely sufficient, and nothing more could properly be added, except, perhaps, that the plaintiff had actually purchased a ticket, or paid the compensation required for traveling the distance alleged by him in the complaint.

(No. 76.)

Against a railroad company, by an executor, for negligently causing the death of plaintiff's intestate.

SUPERIOR COURT-CITY OF NEW-YORK.

Catherine M. Johnson, executrix of the last

will and testament of Peter A. Johnson,

deceased,

agt.

The Hudson River Railroad Company.

The complaint of the abovenamed plaintiff against the abovenamed defendants, a railroad corporation, a body duly incorporated under the laws of the State of NewYork, respectfully shows:

That on the 28th day of August, 1853, the said defendants were engaged in running and propelling a car for the conveyance of freight on the railroad owned by the defendants, and known as the Hudson River Railroad, running between New-York aforesaid and Albany aforesaid, and other places on the line of the said road, and were so running and propelling the said car on the day and year aforesaid, by their servants, workmen or agents, upon that part of their said road lying in the ninth ward of the city of New-York, on West-street, at the intersection of Gansevoort-street, the same being a public highway of the said city, and that the said defendants, by their servants, workmen and agents, or some or one of them, then and there so carelessly and negligently conducted, managed and propelled their said car, that, by

1 See a precedent in such a case against the executors of a ferry proprietor, No. 15, Part III., ante, p. 377, and note.

such carelessness and negligence, their said car, with horses attached thereto, ran against, knocked down and ran over the said Peter A. Johnson, without any fault or neglect on his part, wounding and lacerating his head and body, and otherwise injuring him, so that he, the said Peter A. Johnson, thereafter, in consequence and by reason of the said injuries, and on or about the 30th day of the said month of August, 1853, died, leaving him surviving three infant children.

[The complaint here specified in detail various acts of carelessness and negligence complained of, which it is not deemed essential to insert.]

That the said car was, before and at the instant of running down the said Peter A. Johnson, driven and propelled at an unlawful rate of speed, in the city and county of New-York, to wit, at a rate of more than five miles an hour; and that the said defendants, by their aforesaid wrongful acts, neglect or default, caused the death of the said Peter A. Johnson; and that by reason of his death, caused and occasioned as aforesaid, damages have resulted to the widow and next of kin of him, the said Peter A. Johnson, deceased, whose names are William Nelson Johnson, Francis Malcolm Johnson and Emma Johnson, to the sum of $5,000.

[The complaint, after alleging the due appointment of the plaintiff as executrix, &c. of the deceased, closed by demanding judgment, as executrix, &c., in the sum of $5,000 and See No. 15, ante, p. 377.]

costs.

(No. 77.)

Against a railroad company, for negligently injuring the person of one lawfully traveling on a highway leading across its track.

SUPREME COURT-RENSSELAER COUNTY.

John Maher
agt.

The Hudson River Railroad Company.

The plaintiff complains of the defendant, a railroad corporation duly incorporated under the statutes and laws of this state, and alleges the following facts which constitute his cause of action, that is to say:

That on or about the 21st day of May, 1854, between nine and ten o'clock in the evening, the said plaintiff was walking along Madison-street, a public street in the city of Troy, where said street crosses the road track used by the said defendant, as. he, the said plaintiff, might rightfully and lawfully do, and while so crossing said track, in the street aforesaid, the said defendant, by its agents and employees then in charge of a car or cars and locomotive of said defendant, on said track, by the carelessness, negligence, unskillfulness and mismanagement of said defendant and its employees, and by their culpable neglect and failure to observe the requirements and regulations provided by law, relative to the running of locomotives and cars on the railroads of this state, wrongfully run a car or cars, attached to and propelled by a locomotive of said company, against the said plaintiff, at the place aforesaid, and threw him down on said track, and broke and mutilated the leg of said plaintiff, and injured it to such a degree as to

« PreviousContinue »