Opinion
June, 1894.
Leopold Leo, for appellant.
Brainard Tolles, for respondent.
A complaint must contain a statement of the facts constituting the cause of action. Code, § 481. Though concise, it must still present every constituent of the right and the wrong on which the action proceeds. A requisite fact may appear by implication as well as by express allegation; but the intendment must be reasonable and fair ( Kain v. Larkin, 141 N.Y. 144; Sanders v. Soutter, 126 id. 193; Marie v. Garrison, 83 id. 14; Milliken v. Telegraph Co., 110 id. 403), and a construction in favor of the plaintiff can be such only as the language requires. National City Bank v. Westcott, 118 N.Y. 468; Magauran v. Tiffany, 62 How. Pr. 251. The liberal construction of a pleading enjoined by the Code is applicable only to matters of form; the rule still is that an ambiguous averment must be taken against the party advancing it, and that the omission of an essential fact may not be supplied by inference. Clark v. Dillon, 97 N.Y. 370.
Consistently with the prescribed canons for the construction of a pleading, it is impossible to collect from the complaint under criticism the essential elements of an actionable wrong, namely, negligence of the defendant and absence of contributory negligence on the part of the plaintiff.
Conceding negligence in starting the train before the gate was closed, manifestly that starting was not the cause of plaintiff's fall, for the train was already in motion when he boarded it. An act of negligence unconnected with the injury is necessarily harmless, but negligence and consequent injury must concur in the creation of a cause of action.
The statute requires further, that "the gate shall be kept closed while the car is in motion." Chap. 565, § 139, Laws 1890. Assuming negligence in leaving the gate open, and still it is not apparent that such negligence was the cause of the injury. But for the open gate the plaintiff could not have boarded the car; and hence the open gate was a condition of the injury. It is not pretended, however, that the open gate was the cause of the injury. What was that cause? Upon this, the essential point, the complaint is silent; and we are unable, by any legitimate inference from its allegations, to ascertain the act of negligence on the part of the defendant that caused the plaintiff's injury. Speculation may suggest any one among innumerable facts of imagination as the immediate and responsible cause of the injury; but the law requires that cause to be stated in the pleading and not left to conjecture. Dobbins v. Brown, 119 N.Y. 189.
That the motion of the car was the cause of his fall the plaintiff omits, ex industria, to aver. Accepting, however, the motion of the car as the cause of the injury, then, as plaintiff boarded the car while in motion, he voluntarily subjected himself to the operation of the agency by which he suffered the hurt; and so his own negligence was a contributing cause of his injury.
This conclusion the plaintiff seeks to avoid by the allegation that the motion of the car was so slight and slow as to be imperceptible. But, if the motion was so slight and slow as to be imperceptible, its energy must have been inadequate to the effect supposed, namely, throwing plaintiff down and dragging him along the platform. On the other hand, were the velocity of the car sufficient for such result, then, either he observed the motion and voluntarily incurred its hazards, or else omitted the exercise of the care and vigilance which the law exacted of him. Upon either supposition his own negligence was a cause of his injury. Hunter v. R.R. Co., 126 N.Y. 18; Solomon v. R.R. Co., 103 id. 437, 442; Phillips v. R.R. Co., 49 id. 177.
To escape the imputation of contributory negligence, plaintiff contends further that he was invited to board the moving train; but what of it? If the motion of the train was so faint as to be imperceptible by the plaintiff, it was equally imperceptible by the defendant, and the assurance of safety in boarding the car implied by the invitation was a prudent, not a negligent act. On the other hand, if the velocity of the car was obvious and dangerous, no invitation to enter could justify the plaintiff in encountering the manifest peril. 1 S. R. Neg. § 91.
The dilemma is not to be eluded. If, upon the complaint, the motion of the train be not the apparent cause of plaintiff's injury, no actionable negligence is imputed to the defendant. If such motion be the alleged cause of plaintiff's injury, then the complaint shows the injury to be the effect of his contributory negligence. Upon either hypothesis the complaint was rightly dismissed.
The judgment should be affirmed, with costs.
DALY, Ch. J., and BISCHOFF, J., concur.
Judgment affirmed, with costs.