by reason of said injury said plaintiff suffered great pain and sickness, was compelled to incur the cost and expense of medicine and medical attendance, and was also rendered unable for about five months to pursue his business, and is still unable, and will ever so remain, to perforin ordinary manual labor with his hand;" and claims damages in the sum of fifty thousand dollars.

The defendant appeared in the cause by its attorneys, who filed a demurrer to the complaint, and assigned the following cause of demurrer: "That the said complaint does not state facts sufficient to constitute a cause of action against this defendant."

The cause was brought on to argument in the court below on the demurrer, and that court, on the nineteenth day of September, A. D. 1873, sustained the demurrer, and the plaintiff declined to amend the complaint, and elected to rest the case upon the demurrer; thereupon judgment was rendered against the plaintiff for costs. From this order and judgment the plaintiff appeals.

At the hearing of this case, the counsel upon both sides argued at great length and with marked ability the question of the liability of a master to his servant for the negligence of a fellow-servant. This question is not raised by the record, and we decline to go into the consideration of it.

The complaint alleges, not that any agent or servant of the defendant, for whose acts it is liable, but that the defendant itself, was guilty of the acts of which the plaintiff complains, and by reason of which he suffered the injuries complained of, and this without any fault or negligence or want of care and skill upon his part. The defendant by its demurrer admits this to be true. The complaint may properly be construed as charging personal negligence on the part of the defendant.

While it is true that a corporation can act only through or by some person or set of persons, yet the court will not assume that the acts and omissions charged as the acts and omissions of the defendant itself were really the acts and omissions of one of its agents or employees for which the corporation is not liable to another agent or employee.

For aught that the court can know, the plaintiff may be

prepared to prove that the president of the company, its general superintendent, or some superior officer of the corporation, was in such a position and so circumstanced that by the exercise of ordinary care and vigilance they would have known of the defects in this very car, or were so circumstanced as to charge the company itself with the want of the exercise of that ordinary care and diligence which the law imposes upon them.

It was not necessary for the plaintiff to set this up in detail in his complaint. It is sufficient for him in this respect to charge personal negligence on the part of the defendant.

The complaint should state the facts in "ordinary and concise" language, and not the evidence by which these facts are to be established.

It is true that the plaintiff undertook his engagement with the company, in contemplation of the ordinary hazards of the business, and upon the incidental condition, not that the company will insure him against accidental injuries, but will exercise reasonable and ordinary care and diligence in the discharge of its duties in regard to the busiBut where the company is in fault as to its own duties, and the injury is occasioned by means of its neglect of that reasonable and ordinary care which it must be presumed to exercise in regard to its own business, it is liable in damages unless the plaintiff was also in fault, and his negligence or misconduct contributed as a proximate cause to the injury.

ness.

This complaint alleges that the defendants attached this dangerous and defective brake to this car; it also alleges the dangerous defect in the car, and that the defendants might have discovered the defect by the exercise of proper care and vigilance, that the plaintiff himself not only did not know it, but "in the course of his duties could not have known of said defect," and that said injury occurred without any negligence or want of due care and skill upon his part.

The burden of proof is upon the plaintiff, and if he can upon the trial establish the averments in his complaint, there can be no doubt about his right to recover, or if the defendant should make default, the complaint lays a sufficient foundation for a recovery and judgment.

At the hearing, it was claimed upon the part of the defend

ant that the complaint does not show that the defendant was a corporation or in existence at the date of the alleged injury, but alleges the corporate existence only at the date of filing. the complaint.

There is no merit in this objection. The language of the complaint is, "that said defendant is a foreign corporation, incorporated under an act of congress." It is the same defendant, i. e., a foreign corporation incorporated under an act of congress, in whose employ the plaintiff was at the time of receiving the alleged injuries.

The judgment is reversed and the cause remanded, with directions to the court below to overrule the demurrer.

BOREMAN, J., concurred.

MCKEAN, C. J.:

The complaint being demurred to, its allegations must be presumed to be true. And according to those allegtions, it was impossible that the plaintiff, by any negligence of his own, should have contributed to the injury which he sustained. In this respect this case differs from many cases reported in the books, and from some cases that have been before the courts of this territory. I therefore concur in the opinion that the judgment of the district court should be reversed.

CRAMER v. THE UNION PACIFIC R. R. CO.

[JANUARY TERM, 1875.]

IN AN ACTION AGAINST A CORPORATION BY ONE OF ITS EMPLOYEES FOR damages for injuries sustained by reason of the negligence of the corporation, an allegation that charges the negligence to be that of the defendant is sufficient.

APPEAL from the third district court. The opinion states the facts.

No attorney of record for the appellant.

Hempstead & Kirkpatrick, for the respondent.

BOREMAN, J.:

The complaint shows that the plaintiff (appellant) was employed as a common workman by the defendant, the railroad company, to dig gravel, and to help load and unload the construction train with the same. As part of the contract, he was boarded by the defendant in its construction boarding cars, and carried to and from his work by the defendant. In thus returning from his dinner on one day in October, 1869, a collision occurred between the construction train upon which the plaintiff was being carried and a locomotive running out of time and without notice. By this, collision the plaintiff's leg was crushed, whereby he has been greatly disabled. This suit was brought to recover damages for this injury.

The defendant demurred to the complaint, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The court below sustained the demurrer and gave judgment against the plaintiff. From this action of the court below the plaintiff appeals to this court.

The only question which we are now called upon to consider is the one upon which the demurrer is based.

The principal ground relied upon to sustain the demurrer is that a master is not responsible to his servant for injuries. resulting from the negligence, carelessness, or misconduct of a fellow-servant engaged in the same general business. This question was argued at great length by the attorneys, both of the appellant and of the respondent, yet no such point neccessarily arises upon the demurrer. The position assumed by the defendant may be true as a principle of law, and yet this complaint be entirely sufficient. The injury is not charged to the carelessness, negligence, or misconduct of a fellow-servant, but is charged directly upon the defendant. The collision and consequent injury are not only charged entirely to the negligence of the defendant, but it is alleged also that the same were "without any negligence on the part of the plaintiff."

Some of the numerous allegations of the complaint may be defective, but there are enough good allegations to support a judgment for the plaintiff if one should be had.

The judgment of the court below is therefore reversed with costs, and the order sustaining the demurrer is revoked

and the cause remanded to the court below for further proceedings in accordance with this opinion.

MCKEAN, C. J., and EMERSON, J., concurred.

CRANE BROTHERS MFG. Co. v. REED ET AL.

[DECIDED IN 1875.]

LEGAL CAPACITY TO SUE IS AN ORDINARY INCIDENT TO A CORPORATION, and where corporate existence is alleged by a corporation plaintiff, objections that it has not legal capacity to sue or is not such corporation can not be taken by demurrer.

APPEAL from the third district court. The opinion states the case.

No attorneys of record.

LOWE, C. J.:

The same questions are raised in this case as in that of Thackera, Buck & Co. v. Reid, Kinsey & Greely, just decided, and as to those questions no further observation is requisite. The additional ground, however, is presented by demurrer that the plaintiffs have not legal capacity to sue. By the fortieth section of the code, it is provided that the defendant may demur when it appeals on the face of the complaint "that the plaintiff has not legal capacity to sue." Such is not the fact in the present case. In the title of the case the plaintiff is designated as a corporation, and in the complaint itself it is averred that “the plaintiff is and was at the date hereinafter stated a corporation." The legal capacity to sue is an ordinary incident of a corporation. No defect of such capacity appears upon the face of the complaint. If in fact any such. defect exists, or if the plaintiff is not a corporation, the objection may be taken by answer under section forty-four of the practice act. The objection may be taken by demurrer when it is apparent on the face of the complaint. If authority is necessary on this proposition, the case of The Phoenix Bank v. Donnell, 40 N. Y. 410, is directly in point.

The judgment is affirmed.