Lang v. Lilley & Thurston Co.

BURNETT, J.

The question for solution on this appeal by plaintiff involves the legal integrity of the ruling of the lower court sustaining the demurrer of defendants, the Mahony Bros., to plaintiff’s second amended complaint. In an opinion rendered by this court and filed the twenty-third day of the present month and reported

ante,

p. 223, [128

[266]

Pac. 1028], the order of the lower court sustaining the demurrer of The Lilley

&

Thurston Company was upheld, and to that decision reference is made for a fuller exposition of plaintiff’s pleading. The demurrer of respondents herein, which was both general and special, directs attention to several asserted defects in said second amended complaint. Of these, brief consideration will be given to two only. The ruling was justifiable for the reason that there was a' failure to specify the particular act or acts of negligence which proximately caused the accident. It is not sufficient to allege that the elevator was negligently operated and thereby the injury was produced. Defendants should have been in-, formed, by appropriate allegation, in what respect the contrivance was negligently operated and it should have appeared that the recited facts had a causal connection with the death of plaintiff’s intestate. We are left entirely to • surmise whether the elevator was moved too suddenly or too. rapidly or too far or without warning or, in other words,what particular act was negligently performed. If the ease were tried on the pleading as it stands it is evident that additional facts to those alleged would have to be proved in order for plaintiff to recover. If a witness were asked, in the language of the complaint, whether the elevator was'' operated in a “careless and negligent manner,” it is quite apparent that it would call for the opinion of the witness, and, in the face of a proper objection, no answer would be permitted. Or if a witness should be called upon to state the facts as he observed them or to describe what he saw in reference to the operation of the elevator, it would hardly be contended that he might answer without challenge that the “elevator and counterweight were then and there operated in a careless and negligent manner by an incompetent and unskilled employee.” As said in