McMillan v. Saratoga & Washington Rail Road
New York Supreme Court
THIS was an appeal from an order made at a special term, sustaining a demurrer to the complaint. That pleading averred that the defendants were, at the time of the injury complained of, a corporation ^ly organized, The complaint then further averred that on the 2d of December, 1853, while the said locomotive was being run by the plaintiff’s intestate in the capacity of engineer for the defendants, and in their employ', a horse that was in one of the lots contiguous to and…
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THIS was an appeal from an order made at a special term, sustaining a demurrer to the complaint. That pleading averred that the defendants were, at the time of the injury complained of, a corporation ^ly organized, The complaint then further averred that on the 2d of December, 1853, while the said locomotive was being run by the plaintiff’s intestate in the capacity of engineer for the defendants, and in their employ', a horse that was in one of the lots contiguous to and adjoining said rail road, through and in consequence of a defect in the fence, between said lot and the rail road, which…
1Opinion of the Court
By the Court, C. L. Allen, J.
The first ground upon which the demurrer in this case is predicated is, that the 'complaint does not set forth facts sufficient to constitute a cause of action. The complaint, after stating that the defendants were an organized company and the owners of the road, and were running it, avers that on the 2d day of December, 1853, while they were so running the road, the plaintiff’s intestate was in the employ of the defendants as an engineer upon their locomotive, while it was in their use and service on that day. This is a sufficient allegation to show that the…
2Cited by10 opinions
- Davis v. Detroit & Milwaukee Rail RoadMichigan Supreme Court · 1870
- Cederson v. Oregon Navigation Co.Oregon Supreme Court · 1900
- Muldowney v. Illinois Central R.Supreme Court of Iowa · 1874
- Elliott v. St. Louis & Iron Mountain R. R.Supreme Court of Missouri · 1878
- Criswell v. Railway Co.West Virginia Supreme Court · 1888
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