Kennedy v. Morgan
Supreme Court of Vermont
Case for negligence. Heard on demurrer to the declaration, March Term, 1884, Veazet, J., presiding. Demurrer sustained. The declaration alleged, in substance: That the defendant, on the 21st day of April, 1883, was engaged in tearing down and removing a certain school building situate in Rutland, upon an open, public park, which building was constructed of high brick walls; that Miles Kennedy is the minor son of the plaintiff, whom the plaintiff is bound in law to support;…
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Case for negligence. Heard on demurrer to the declaration, March Term, 1884, Veazet, J., presiding. Demurrer sustained. The declaration alleged, in substance: That the defendant, on the 21st day of April, 1883, was engaged in tearing down and removing a certain school building situate in Rutland, upon an open, public park, which building was constructed of high brick walls; that Miles Kennedy is the minor son of the plaintiff, whom the plaintiff is bound in law to support; that the said Miles was, at the time aforesaid, quietly, properly and prudently sitting upon timbers at and near the…
1Opinion of the Court
The opinion of the court was delivered by
Powers, J.
Negligence is a shortage of legal duty.
All facts essential to the creation of the duty must be alleged in a declaration charging negligence upon such facts. If the facts stated in the declaration do not raise the duty, the duty cannot be established by proof of other facts not stated. Allegation as well as proof is the foundation of a right of recovery. If the pleader merely alleges the duty in his declaration, he states a conclusion of law; whereas the elementary rule is, that the facts from which the duty springs must be spread upon the…
2Cases cited1 opinion
- Fay v. KentSupreme Court of Vermont · 1883
3Cited by13 opinions
- Louisville & Nashville Railroad v. Marbury Lumber Co.Supreme Court of Alabama · 1899
- Humphrey v. Twin State Gas & Electric Co.Supreme Court of Vermont · 1927
- Bottom's v. HawksSupreme Court of Vermont · 1911
- Dent v. Bellows Falls & Saxtons River Street Railway Co.Supreme Court of Vermont · 1922
- Pittsfield Cottonwear Manufacturing Co. v. Pittsfield Shoe Co.Supreme Court of New Hampshire · 1902
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