keep a bridge on a county road in a safe condition for use, the complaint must show that the bridge is one over which the county has control.19 In New York, in an action against a town for injuries caused by the negligence of its agents and servants in failing to repair a highway or bridge, the complaint must allege that the defendant had funds, or, the means of acquiring funds, or that its highway commissioners had funds, or means of acquiring them.20 A contract with a municipal corporation for repairing street lamp posts, and lighting the lamps, raises a public duty on the part of the contractor to be performed for the benefit of the citizens distributively; 21 and a recovery may be had by one who has been injured by reason of the negligent nonperformance of such duty, in an action which proceeds, as for a non-performance of public duty, and which sets up the contract by way of inducement.22 In an action against a city for an injury caused by a defective sidewalk, a complaint averring that the plaintiff was without fault or negligence need not aver his ignorance of the defect.23 But a complaint against a town to recover for a personal injury, in consequence of falling into an excavation in a street, which fails to show that the town was chargeable with fault at the time of the injury, or that the injury was caused by the wrongful act or omission of the town, is bad on demurrer.24 In pleading, an allegation that an injury for which redress is sought was caused by the recklessness and gross negligence of the defendant, will not amount to a charge that the injury was inflicted purposely or willfully.25 In New York, in an action to recover damages alleged to have been caused by the defendant's negligence, it is sufficient to aver in the complaint that the injury and damage complained of was caused by the negligence of the defendant, such averment being

And

equivalent to alleging that it was the sole cause.26 although the complaint does not specify a particular act of negligence, yet negligence in a form which appears by the defendant's evidence may be sufficient to sustain the action.27 A complaint in an action for negligence causing death must state facts to show pecuniary loss, present or prospective, resulting from the death, to those entitled to the damages.28 Where both actual and exemplary damages are claimed in an action for negligently causing death, they should be claimed by proper allegations, in the nature of distinct counts, on different causes of action.29 Where alleged negligence consists in the omission of a duty, the facts relied on as implying the duty should be set forth in the pleading.30

1 Mack v. Railroad Co. 77 Mo. 232; McCauly r. Davidson, 10 Minn. 418; Clark v. Railway Co. Cir. Ct. Iowa, 3 Colo. L. R. 343; Otto v. Railroad Co. 12 Mo. App. 168.

2 Nolton v. Railroad Co. 10 How. Pr. 97; 15 N. Y. 444.

3 Edens v. Railroad Co. 72 Mo. 213; Schneider v. R. R. Co. 75 Mo. 295; Johnson v. Railroad Co. 31 Minn. 283; Clark v. Railroad Co. 28 Minn. 69; Railroad Co. v. Chester, 57 Ind. 297; Kessler v. Leeds, 51 Ind. 212; Chiles v. Drake, 2 Met. (Ky.) 149. And see Railroad Co. v. Jones, 86 Ind. 496; 44 Am. Rep. 334; Brinkman v. Bender, 92 Ind. 234.

4 Dyer v. Pacific Railroad, 34 Mo. 127; Burdick v. Worrall, 4 Barb. 596. See Simpson v. La Plata etc. Co. Cir. Ct. Colo. 3 Colo. L. R. 568.

5 City of Evansville v. Worthington, 97 Ind. 282; Jones v. White, 90 Ind. 255. And see Cin. etc. R. R. Co. v. Chester, 57 Ind. 297; Ohio etc. R. R. Co. v. Collarn, 73 Ind. 261; 38 Am. Rep. 134; Nowlin v. Whipple, 79 Ind. 481; Tierney v. Railroad Co. 31 Minn. 234; Hayden v. Anderson, 17 Iowa, 162; Fitts v. Waldeck, 51 Wis. 569; Railroad Co. v. Lavally, 36 Ohio St. 225.

6 Cramer v. Union Pacif. Ry. Co. 3 Utah, 504. In a suit by one not a servant against a master to recover damages resulting from his servant's negligence, the complaint may impute the servant's negligence directly to the master: Haywood v. Hedrick, 94 Ind. 340; Railroad Co. v. Collarn, 73 Ind. 261; 38 Am. Rep. 134.

7 Wilson v. Railroad Co. 7 Colo. 101.

8 Daniel v. West. Union Tel. Co. 61 Tex. 452, Railroad Co. 46 Tex. 279.

And see Hays v.

9 Taylor v. Holman, 45 Mo. 371; McCord v. High, 24 Iowa, 336. See Conway v. Reed, 66 Mo. 346; Robinson v. Wheeler, 25 N. Y 252.

10 Louisville etc. Canal Co. v. Murphy, 9 Bush, 522; Paducah etc. R. R. Co. v. Hoehl, 12 Bush, 41; Hackford v. Railroad Co. 6 Lans. 381;

53 N. Y 654; Lee v. Gaslight Co. 20 N. Y. Week. Dig 413; Railway Co. v. Pointer, 14 Kan. 37; Robinson v. Railroad Co. 48 Cal. 40); Yik Hon v. Spring Valley Water Works. Sup. Ct. Cal. 4 West C. Rep 45; 4 Pacif. L. Rep. 666; Conroy v. Oreg. Construction Co. Cir. Ct. Oreg. 5 West C. Rep. 773; Holmes v. Railroad Co. 6 Sawy. 289; Knaresborough v. Mining Co. 3 Sawy. 446; Railway Co. v. Gladmon, 15 Wall. 401; Robinson v. Railroad Co. 65 Barb. 146; 66 N Y. 11 ; 23 Am. Rep. 1; Urquhart v. Ogdensburg. 23 Hun, 75; Hocum v. Weltherick 22 Minn. 152: Lopez v. Mining Co. 1 Ariz. 464.

11 Louisville etc. Railroad Co. v. Lockridge, 93 Ind. 191: Pennsyl vania Co. v. Gallentine, 77 Ind. 322. And see Walsh v. Oreg. Ry, & Nav. Co. 10 Oreg 253; Hale v. Smith 78 N. Y. 480.

12 Wabash etc. R. R. Co. v. Johnson, 96 Ind. 44. And see Brinkman v. Bender, 92 Ind. 234; Railroad Co. v. Jones, 86 Ind. 496; 44 Am. Rep. 334. But see contra, Aycock v. Railroad Co. 83 N. C. 321; Owens v. Railroad Co. 88 N. C. 502.

13 Board of Commissioners v. Legg, 93 Ind. 523; Rogers v. Overton, 87 Ind. 410; Town of Rushville v. Poe, 85 Ind. 83; Gheens v. Golden, 90 Ind. 427.

14 Bowlus v. Brier, 87 Ind. 391.

15 Street Railroad Co. v. Nolthenius, 40 Ohio St. 376. And see Railroad Co. ". Barber, 5 Ohio St. 541; Robinson . Gary, 28 Ohio St. 241; Railroad Co. v. Whitacre, 35 Ohio St. 627; Hays v. Gallagher, 72 Pa. St. 140: Tex. etc. R. R. Co. v. Murphy, 46 Tex. 356; Hoth v. Peters, 55 Wis. 405.

16 Kennon v. Gilmer, 4 Mont. 433,

17 Kennon v. Gilmer, 4 Mont. 433.

18 Jones v White, 90 Ind. 255.

19 Board of Commissioners v. Legg, 93 Ind. 523. And see Board etc. v. Deprez, 87 Ind. 509; House v. Board etc. 60 Ind. 550; 28 Am. Rep. 657; State v. Board etc. 80 Ind. 478; 41 Am Rep. 821. Compare Altnow v Town of Sibley, 30 Minn. 186; 44 Am. Rep. 191.

20 Eveleigh . Town of Hounsfield, 20 N. Y. Week. Dig. 210. And see Warren v.Clement, 24 Hun, 472.

21 Lampert v. Gaslight Co. 14 Mo. App. 376.

22 Lampert v. Gaslight Co. 14 Mo. App. 376.

23 City of Lafayette v. Weaver. 92 Ind. 477. In New York, the complaint in such action need not aver that the plaintiff was without fault Urquhart v. Ogdensburg 23 Hun, 75.

24 Corporation of Bluffton v. Mathews. 92 Ind 213.

25 Cin etc. R. R. Co v Eaton, 53 Ind 307: Pennsylvania Co. v. Smith, 98 Ind. 42. And see Jacob v Railroad Co 10 Bush, 267.

26 Urquhart v. Ogdensburg, 23 Hun 75. And see Hackford v Railroad Co. 13 Abb. Pr. N. S 18; Haskell v. Village of Penn Yan, 5 Laus 43. 45.

27 Beckwith v Railroad Co. 64 Barb. 299. 309.

28 Regan . Railroad Co. 51 Wis. 599. And see Woodward ". Railroad Co 23 Wis 400; Kelley v. Railroad Co. 50 Wis. 381; Safford v Drew 3 Duer 627, 633.

29 Wallace v Finberg, 46 Tex. 35; Railroad Co. . Le Gierse. 51 Tex. 189.

30 Congreve v. Morgan. 4 Duer. 439: City of Buffalo v. Holloway, 7 N. Y. 493; Taylor v. Insurance Co. 2 Bosw. 106.

2175. Negligence-Answer. — In an action of tort for negligence, evidence that the acts or omissions of the plaintiff contributed to the injury is admissible under a general denial that the injury complained of was occasioned by the defendant. And it is held, even in States where the plaintiff is not required to negative contributory negligence in his complaint, that evidence of such negligence may be given under the general denial, and that the facts need not be specially pleaded.' So under a general denial, evidence is admissible to prove that the injury resulted from the negligence of third persons.3 Under a general denial, in an action to recover damages for negligence in opening a ditch, whereby, as alleged, water was let into the plaintiff's premises, evidence that the water came, not from the ditch, but from the sewer, defects in which were the real cause of the injury, is admissible. So in an action for damage to the plaintiff's goods through the defendant's negligence, the defendant may show, under a general denial, that the goods injured did not belong to the plaintiff.5 But it cannot be proved, under a general denial, in an action for injuries sustained by falling into a coal-hole, brought against the owner of the premises to which it belongs, that permission or license was given by municipal authority to make the coal-hole, and such permission and license, if a fact, must be pleaded to be available. If the plaintiff's negligence is remote, and without it he still would have suffered the damage, then it is not contributory in the sense of the law. And if one sues another for a positive, willful wrong or fraud, negligence by which the injured party exposed himself to the wrong or fraud will not bar relief."

1 Brown v. Elliott, 45 How. Pr. 182; 4 Daly, 329; McDonell v. Buffum, 31 How. Pr. 154; Jonesboro etc. Turnp. Co. Baldwin, 57 Ind. 86.

2 St. Anthony Falls etc. Co. v. Eastman, 20 Minn. 307. But see Railroad Co. v. Washburn, 5 Neb. 123.

3 Hoffman. Gordon. 15 Ohio St. 211; Adams' Express Co v. Darnell, 31 Ind 20; Schalar . Railroad Co. 38 Barb. 653.

4 Schaus v Manhattan Gaslight Co. 14 Abb. Pr. N. S. 371; 4 Jones & S. 262.

5

Brown v. Elliott, 4 Daly, 329; 45 How. Pr. 182,

6 Clifford v. Dam, 81 N. Y. 52; 12 Jones & S. 391. O'Connor v North Truckee Ditch Co. 17 Nev. 245. 8 Albany City Sav. Bank r. Burdick, 87 N Y. 40.

176. Nuisance. Although a nuisance may affect the public at large, yet, where an individual suffers special injury therefrom, he is entitled to sue for relief.' And in a civil action for a nuisance, the complaint must state facts which in law constitute a nuisance, from which the plaintiff has suffered special injury.' The nuisance should be particularly described, and under a complaint stating facts constituting a nuisance of one kind, it is not permissible to prove a nuisance of a character essentially different. It is not, however, necessary to detail all the particular injuries which result from the alleged nuisance; it may be sufficient to specify the main fact, but if it is attempted to specify particularly the injuries resulting from the principal one, ail that are designed to be proved should be stated. If the action is against one who continues but who did not create the nuisance, it is necessary to aver, that before the commencement of the action he had notice or knowledge of the existence of the nuisance; but a request for its abatement is not necessary. Generally speak

ing, negligence does not enter as an element into an action for a nuisance, and need not be alleged. Nor should the complaint or petition anticipate defenses;" thus, in an action against an adjoining proprietor to recover damages for overflowing the lands of the plaintiff by means of a ditch constructed by the defendant on his own land, the complaint need not aver that such act of the defendant was wrongful and unlawful or