NEGLIGENCE. BY HAROLD N. ELDRIDGE. I. COMPLAINT, DECLARATION OR PETITION, 4. (1) Hoisting Too Heavy Weight on Derrick, 12. (a) Causing Injury to Employee, 14. bb. Elevator, 16. (b) Causing Injury to Third Person, 18. c. In Management of Electric Plant — Improperly Insulated Wires, 19. d. In Management of Hack, Causing Injury to Passenger, 22. e. In Management of Premises, 23. (1) Allowing Accumulation of Ice and Snow on Roof of Building, 23. (2) Leaving Building Materials in Highway, 23. (3) Leaving Pile of Earth in Highway, 24. (4) Leaving Unguarded Elevator Vault, 25. (5) Leaving Unguarded Machinery Attractive to Children, 26. (6) Leaving Unguarded Hole, 27. (a) On Private Premises, 27. aa. In General, 27. (aa) Alley, 27. (bb) School Premises, 28. (cc) Vessel, 29. bb. Near Highway, 30. (b) On Sidewalk, 32. (7) Maintaining Fence, 32. (8) Maintaining Seats at County Fair, 33. (9) Maintaining Shafting, Causing Injury to Employee (10) Maintaining Sidewalk Grating, 35. (a) With Plaintiff's Vehicle, 37. aa. Generally, 37. bb. Bicycle, 38. (b) With Third Vehicle, 39. 13 E. of F. P. - I. 1 Volume 13. NEGLIGENCE. (2) In Insufficiently Loading, 40. g. In Management of Railroad, 41. (a) Allowing Steam to Escape, 41. aa. Causing Plaintiff's Horse to Run bb. Scalding Passenger on Station Plat- (b) Blowing Whistle, Causing Plaintiff's Horse Starting Train Too Quickly, 48. (g) Uncoupling Train While Passenger Pass- (h) Using Defective Appliances, 52. aa. Causing Iniury to Employee, 52. (b) Failure to Signal on Approaching, 55. h. In Management of Street Railroad, 59. (1) Allowing Conductor to Abandon Car, Whereby Pas- senger on Alighting was Pushed Off by Other (5) Leaving Switch Open, Whereby Plaintiff was Com- pelled to Jump to Avoid Collision, 67. i. In Management of Tugboat, Causing Collision, 68. j. In Management of Vicious Dog, which Caused Plaintiff's 2. For Injury to Property Through Negligence, 70. a. In Management of Private Vehicle, Causing Collision, 70.. 2. Negligence Insufficiently Alleged, 76. 1. General Denial Except as to Incorporation, 76. 3. Setting Up Contributory Negligence, 78. (1) Where Plaintiff was Injured, 81. (2) Where Plaintiff's Child was Injurea, 82. (1) In Coming in Contact with Electric Wire, 82. (2) In Failing to Look for Train, 83. For Forms in Proceedings in Admiralty for Negligence, see the title AD- For Forms in Actions Against Attorneys for Negligence, see the title For Forms in Actions By and Against Bridge Authorities for Negli- For Forms in Actions Against Brokers for Negligence, see the title For Form of Complaint Against a Builder for Negligence, see the title For Forms in Actions Against Carriers for Negligence, see the title CAR- For Forms in Actions for Injury to Animals Through Negligence, see the title CATTLE AND DOMESTIC ANIMALS, vol. 4. p. 376. For Forms in Actions for Damages Caused by Vicious Animals, see the For Forms in Actions Against Cemetery Corporations for Negligence, see For Forms in Actions for Negligence, Causing Death, see the title DEATH BY WRONGFUL ACT, vol. 6, p. 1. For Forms in Actions Against Dentists for Negligence, see the title For Forms in Actions Against Directors and Corporation Officers for Neg- For Form of Complaint for Negligence, Causing Injury to a Drain, see For Forms in Actions Against Druggists for Negligence, see the title For Forms in Actions Against an Elevated Railroad for Negligence, see For Forms in Actions for Negligence, Causing Injury from Explosions, see the title EXPLOSIONS AND EXPLOSIVES, vol. 8, For Form of Declaration Against the Proprietor of a Ferry for Negli gence, Causing Injury to Goods, see the title FERRIES, vol. 8, For Forms in Actions for Negligence, Causing Injury from Fires, see the For Forms in Actions Against Innkeepers for Negligence, see the title For Forms in Actions by a Tenant Against a Landlord for Negligence, see For Forms in Actions for Negligence, Causing Injury to Lateral Support, For Forms in Actions by a Servant Against a Master for Negligence, see For Form of Complaint Against Owner of Mill Dam for Negligence, Causing Destruction of Crop, see the title MILLS AND MILL DAMS, vol. 12, Form No. 13831. For Forms in Actions for Negligence in the Management of Mines, see For Forms in Actions Against Municipal Corporations for Negligence, see the titles MUNICIPAL CORPORATIONS, vol. 12, p. 952; For Forms of Plea and Answer of Contributory Negligence, see the title 1. Requisites of Complaint, etc. Gen- erally. For the formal parts of a complaint, declaration or petition in a particular jurisdiction consult the titles COMPLAINTS, Vol. 4, p. 1019; DECLARA- Form of Action. In all cases, where the injury is attributable to negligence, 1. For Injury to Person Through Negligence. be no negligence. Parker v. Providence, etc., Steamboat Co., 17 R. I. 376; Mexican Nat. R. Co. v. Crum, 6 Tex. Civ. App. 702. It is not enough, however, for the plaintiff to show merely that the defendant neglected a duty, and that he would not have been injured if the duty had been performed. Morrissey . Providence, etc., R. Co., 15 R. I. 271. And certainly not enough to show that defendant neglected a duty imposed for the benefit of a third person and that plaintiff would not have been injured if such duty had been performed. Hamilton v. Minneapolis Desk Mfg. Co., (Minn. 1899) 80 N. W. Rep. 693. But he must go further and show that the duty was one which the defendant owed him. Emry v. Roanoke Nav., etc., Co., 111 N. Car. 94; Wilson v. New York, etc., R. Co., 18 R. I. 491; Mexican Nat. R. Co. v. Crum, 6 Tex. Civ. App. 702. A bare allegation of duty is not sufficient. West Chicago St. R. Co. v. Coit, 50 Ill. App. 640; Funk v. Piper, 50 Ill. App. 163; Angus v. Lee, 40 Ill. App. 304; Clyne v. Helmes, 61 N. J. L. 358. It is immaterial and ought never to be introduced. Breese v. Trenton Horse R. Co., 52 N. J. L. 250. For it is but a mere conclusion of law, is not traversable, and will not sustain a pleading. Ward v. Chicago, etc., R. Co., 61 Ill. App. 530; Marvin Safe Co. v. Ward, 46 N. J. L. 19; Kennedy v. Morgan, 57 Vt. 46. And is mere surplusage. West Chicago St. R. Co. v. James, 69 Ill. App. 609; Thamm v. Lahey, 59 Ill. App. 73; Zjednoczenie v. Sadecki, 41 Ill. App. 329. And is not even obnoxious to special demurrer. Jensen v. Wetherell, 79 Ill. App. 33. But the facts and circumstances from which the duty arises must be set out, and the sufficiency of the pleading must be determined from the facts from which the duty is deduced. Mobile, etc., R. Co. v. Crenshaw, 65 Ala. 566; West Chicago St. R. Co. v. James, 69 Ill. App. 609; West Chicago St. R. Co. v. Coit, 50 Ill. App. 640; Funk v. Piper, 50 Ill. App. 163; Angus v. Lee, 40 Ill. App. 304; Clyne v. Helmes, 61 N. J. L. 358; Breese v. Trenton Horse R. Co., 52 N. J. L. 250; Marvin Safe Co. v. Ward, 46 N. J. L. 19: Emry v. Roanoke Nav., etc., Co., III N. Car. 94; Wilson v. New York, etc., R. Co., 18 R. I. 491; Mexican Nat. R. Co. v. Crum, 6 Tex. Civ. App. 702; Kennedy v. Morgan, 57 Vt. 46; Brothers v. Rutland R. Co., (Vt. 1898) 42 Atl. Rep. 980. In Breese v. Trenton Horse R. Co., 52 N. J. L. 250, it was alleged that the plaintiff was on" one of the street cars of the defendant “and thereupon, it became and was the duty of the said defendant to guard, protect and secure the said Edward Yard Breese in dismounting, descending, getting down and removing himself from the said car; yet the said defendant, not regarding his duty in that behalf, did not use due and proper care to guard, protect and secure the aforesaid Edward Yard Breese, whereby," etc. It was held that this description of the duty was not the statement of a fact, but was simply and exclusively the pleader's averment of the legal efficacy of the facts stated, and was therefore insufficient. In an action for personal injuries caused by an elevator, it must be averred that defendant had authority or control over it, for in the absence of such averment no duty to regulate its running is shown. Troth v. Norcross, III Mo. 630. So in a complaint against a landlord of premises by a third person, who was injured by the falling of a part of the building through failure to repair, it must be shown that the defendant was bound to repair. Casey v. Mann, (N. Y. Super. Ct. Spec. T.) 5 Abb. Pr. (N. Y.) 91. And a complaint is insufficient which shows that the person injured was a trespasser, as defendant does not owe such a person any duty. Parker v. Pennsylvania Co., 134 Ind. 673. But an allegation that the plaintiff was at the place where the accident occurred, on business with, and at the invitation of, the defendant, was held sufficient to show the duty on the part of the defendant, as between the parties, of keeping the premises in a safe condition. Schmidt v. Bauer, So Cal. 565. See also McKee v. McCardell, 21 R. I., pt. 2, p. 156. Duty cannot be established by proof of other facts not stated. Kennedy v. Morgan, 57 Vt. 46. Nor can a commonlaw duty be shown where the declaration is based upon a statutory liability, and there are no general averments of neglect of duty. Toledo, etc., R. Co. v. Cline, 135 Ill. 41. An exception to the rule, that duty must be shown, exists where the law |