If any one of several counts in a declaration be proved (although the proof of all others should fail), the plaintiff must recover upon it, unless it be radically insufficient in law. For by maintaining one good count he established a complete right of recovery. And for the same reason, if on demurrer to the whole declaration, any one of the counts be adjudged sufficient in law, the plaintiff will be entitled to judgment on the count, though all the others be defective [citing Gould's Pl. c. 4, § 6; 1 Saund. n. 9 (2d Ed.) 171], the judgment being either final or of respondeat ouster, at the election of the defendant [citing Laws of Delaware, vol. 21, c. 303]. The pleadings in a case cannot be used as evidence [citing Craig v. Burris, 4 Pennewill, 156, 55 Atl. 353], therefore the presence of different or contradictory counts or pleas is in no sense dangerous."

[2] In every count except the first the plaintiff has failed to state the time or date of defendant's alleged negligence, and it is contended by the defendant that such counts are, therefore, insufficient.

We are not aware that this question has heretofore been passed upon by the court, but we think the date of defendant's negligent act should be averred. It is essential to give defendant knowledge of the case he must be prepared to meet.

[5] The defendant's contention that plaintiff's third count is insensible is not sustained. The objection that the street could not approach the railroad crossing is entirely too technical.

[6] The defendant claims that the sixth count of plaintiff's narr. does not disclose in what manner the defendant was negligent. In this count it is averred that "through the negligence and carelessness of the said defendant as aforesaid the said automobile of the plaintiff was struck and demolished," and that is the only allegation of negligence contained in the count. Manifestly, this is not a complete or sufficient statement of plaintiff's cause of action, because no negligence at all is averred except by reference to other counts. This, as we have above stated, is insufficient. Each count must contain in itself a statement of the cause of action.

The demurrer is sustained as to the second, fourth, and fifth counts, because of plaintiff's

failure to aver therein the date or time of

the accident, and also as to the sixth count, for the same reason, and for the additional reason that it contains no sufficient averment of the defendant's negligence.

The demurrer is overruled as to the first and third counts.

The declaration in the second case contain

[3] The defendant also contends that the entire narr. is bad because nowhere is it stated whether the plaintiff was driving the automobile that was struck by the defended three counts. ant's train.

The causes of demurrer in the second case were:

(1) That the said several counts are uncertain.

(2) That the said first and second counts do not inform the defendant whether the plaintiff was riding or walking at the time she was run into and struck, or, if riding, whether or not she was driving the convey

ance.

(3) That the averments of negligence in the said third count are argumentative. (4) That no date is named in the said second count.

The contention of counsel for plaintiff was the same as in the first case.

The averment in each count is that at the time of the collision the plaintiff was riding in the car that was struck and demolished. It may be that if the plaintiff, at the time of the accident, was driving the car, it is his duty to aver that fact in his narr., because the degree of care to be observed by the defendant might be greater if he was operating the car than it would be if he was simply riding in the car. But if the plaintiff was riding in, and not driving, the car, he was not bound in his pleading to negative the fact that he was driving. If he was driving the car, it would be better and safer to amend his narr. by stating the fact in every count. [4] It is further contended by the defendant that it is incumbent on the plaintiff to aver in each count of his declaration that he was, at the time of the collision, in the [7] In this case the defendant contends exercise of due care and caution on his that the counts are bad because they do not part. Nowhere in the second, fourth, fifth, show whether the plaintiff was riding or and sixth counts is such averment made. walking at the time she was injured. The While it is usual in an action for personal court are of the opinion that the averment, injuries for the plaintiff to aver that he was "the plaintiff was lawfully crossing the in the exercise of due care and caution at tracks," is not sufficient. The defendant is the time of the accident, we think it is not entitled to know in what manner the plainnecessary, and hold that the counts are not tiff approached and attempted to cross the bad on that account. The failure of the tracks, whether walking or riding in a motor plaintiff to observe proper care and caution vehicle. What might constitute negligence or is a matter of defense, and it is not essential contributory negligence in one case might not that he should, in the statement of his cause in the other. of action, negative such failure. 31 Cyc.

PENNEWILL, C. J., delivering the opinion of the court.

The second count is also defective be

(115 A.)

collision; and this count, as well as the third, is insufficient because it does not state a complete cause of action. Each must contain a full statement.

The demurrer is, therefore, sustained as to all the counts.

(121 Me. 1)

William A. Connellan and Harry H. Cannell, both of Portland, for plaintiff. Hinckley & Hinckley and Stephen W. Hughes, all of Portland, for defendant.

SPEAR, J. On the 28th day of March, 1919, the plaintiff met with an accident on a cross-walk in the city of South Portland, by stubbing her toe, in the nighttime, against the end of a plank that projected above the

HARMON v. CITY OF SOUTH PORTLAND. surface of the cross-walk somewhere from

four to eight inches. At the close of the

(Supreme Judicial Court of Maine. Dec. 5, plaintiff's evidence the court granted a mo

1921.)

1. Municipal corporations 790-Notice of defect in highway given workman not sufficient, under statute requiring notice to "municipal officers."

Notice of defect in sidewalk, given to workman by person subsequently injured by reason of defect, held not a compliance with statute, making notice to "municipal officers" a condition precedent to recovery of damages, where such person had notice of defective condition previous to the time of the injury.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Municipal Officer.]

2. Municipal corporations 790-Notice of defect in highway given municipal authorities by injured person's husband insufficient, under statute requiring that notice be given by "sufferer."

tion for a nonsuit, to which the plaintiff filed exceptions, and this is the way the case comes up. The only question involved is whether there is sufficient evidence, if fully believed by the jury, to sustain a verdict in favor of the plaintiff, if so found.

The trouble with the plaintiff's case appears to arise from legal impediments. The statute places a heavy burden upon the plaintiff in highway cases against a town for damages. First the plaintiff must prove 24

hours' actual notice to one of the officials

named in the statute, and also the 14 days' notice of the accident. There is yet another notice to be complied with that proves fatal to the plaintiff's case, upon her own testimony. This requirement is:

"And if the sufferer had notice of the condition of such way previous to the time of the inA wife who had notice of defect in high-jury he cannot recover of a town unless he has way, and who did not notify municipal author- previously notified one of the municipal offiities thereof, as required by statute making cers of the defective condition of such way." such notice by "sufferer" a condition precedent to recovery of damages for injuries to person with notice of defect prior to injury, could not recover from city for injuries caused thereby, though her husband had notified city authorities prior to the accident; the duty of giving notice being personal to injured person.

3. Municipal corporations 790-Person who had knowledge of defect in highway but did not notify city authorities could not recover for injuries caused by defect.

One who had notice of defect in highway without giving municipal authorities notice thereof, as required by statute making such notice a condition precedent to the recovery of damages for injuries caused by defect of which injured had notice prior to accident, could not recover on theory that city authorities had actual notice of defect and that she had a right to assume that highway had been repaired.

It will be observed that this notice must be

given by the "sufferer," plaintiff, to one of the municipal officers, not to "a municipal officer, the street commissioner, or their substitute," as the other 24 hours' actual notice of the defect may be given.

[1] We find no evidence whatever of such notice. The plaintiff testified that she informed a Mr. Cobb, a workman on the road, of the alleged defect in question, and Mr. Cobb says he notified the street commission

We refer to the

er. Whether this was sufficient notice of
the defect to the street commissioner it is
not necessary to decide.
testimony to show that the plaintiff knew of
the defect, if it was a defect, in the spring
of 1918, about a year before the accident.

If we assume that the condition complained of was a defect, the plaintiff had notice

Exceptions from Supreme Judicial Court, of it. It was then incumbent upon her, as Cumberland County, at Law.

Action by Rose E. Harmon against the City of South Portland. Motion for nonsuit granted, and plaintiff excepts. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, and DEASY, JJ.

a condition precedent to any right of action for injury against the city, to previously notify one of the municipal officers of the defective condition of the way.

[2] There is some evidence that the plaintiff's husband, "about four or five years ago," notified one of the alderman of the alleged defect. The statute, however, requires that the notice shall be given by the "sufferer" in

(115 A.)

hand before he had crossed the railroad track or made his turn, as testified by Mrs. Wright; that Wright dropped his hand before he saw French coming 100 feet away; that he did not blow his horn; that, as his forward

saw the defendant, on his own side of the road, about 100 feet away; that he then kept right on going; that after he thus saw the defendant he did not look for him again until he (Wright) was within the entrance of the Promenade, and then only when the plaintiff exclaimed with reference to the proximity of a collision.

Washington street is paved, and the Prom- | passed and it was about opposite the center enade is macadam to the line of Washington. of the Promenade, the driver threw out his Washington street runs southerly towards Congress street and northerly toward Falmouth. The Promenade does not cross Washington street but leads out of it toward the east. For convenience the car in which the plain-wheels had just passed the car tracks, he tiff was riding will be spoken of as the plaintiff car. The plaintiff car was going southerly toward Congress Street and the defendant car in the opposite direction. The plaintiff car was occupying its right-hand side of the road until it arrived at a point nearly opposite the middle of the mouth of the Promenade. It was the particular duty of the defendant to watch for a car that might be coming from the Promenade into Washington street. As was said in Bragdon v. Kellogg, 118 Me. 42, 105 Atl. 433, 6 A. L. R. 669: "A somewhat different situation than would arise if they [the streets] crossed each other, forming four corners, in this, that a car on Main street [Washington street] approaching North street [the Promenade] is charged with knowledge that a car coming from North street [the Promenade] must necessarily turn to the right or the left into Main [Washington] street."

The defendant kept the right-hand side of the road all the time, until he turned still further to the right to avoid collision.

[2] The defendant had the right of way in passing the mouth of the Promenade. He was, moreover, charged with the knowledge and expectation that a car might cross his path coming from the Promenade, but not with either knowledge or expectation that a car would cross his path, by turning into the Promenade, from the other side of the street, without reasonable warning. There is no proof that the defendant was violating the law of speed. The evidence of the plaintiff shows that he was in all respects a lawful traveler on this road up to the moment of the

accident.

[3] In describing the accident we refer only to the plaintiff's evidence, as the jury had a right to base their conclusions on the plaintiff's version of how it occurred. But in coming to a reasonable conclusion, not only the testimony, but circumstances and conditions, must be considered. There is an axiom of law expressed by the phrase "res ipsa loquitur," the thing itself speaks. So in this case the manner of the accident furnishes inherent evidence of what took place, when construed in the light of the law applicable to this class of cases.

The plaintiff's version of the accident was that the plaintiff car was moving along on its own side of the street, with the intention of turning to the left across the street, into the Eastern Promenade; that it slowed down and turned to the right of the railroad track

The following questions and answers tell the whole story of Wright's negligence and disregard of law:

"Q. You didn't see Mr. French at all, did you, except for the distance when he was back here 100 feet?"

"A. When I started to cross the road there, I looked and I saw him.

"Q. After that you didn't look, did you, until Mr. Fernald called you?

"A. No, sir.

"Q. So that you approached this only place of actually getting across that street from the car track without turning your eyes in the direction of where Mr. French was?

"A. Yes, sir. I was watching the car. I was French could see, or whoever it was. I thought Mr. looking upon the Promenade. "Q. Or whoever it was?

"A. Yes, sir. He can't run around blind any more than I could.

"Q. I would suppose, if you were crossing the iron and French was coming, you could see him? "A. I thought at the time some one was driving the machine."

car in which the plaintiff was riding. Wright testifies that his front wheels were on that track, when he then first saw French. He had an unobstructed view of him all the time. There were "many machines," and yet, according to his own testimony, Wright turned directly in the path of the defendant car, when he knew it was coming directly along the right-hand side of the street, without ever once looking up to see whether he could safely pass in front of that car or not. Time and distance are deceptive and illusive under such circumstances. The whole occurence from the time the plaintiff car saw French until the imminence of collision was the work of but seconds. Wright's estimate that the defendant was 100 feet away was at best a mere guess. And, judging from the proven rate of speed of the two cars, an erroneous guess, at that. If French was 100 feet away and going at the rate of 15 miles an hour, it was only 51⁄2 ticks of the clock before he was in the path of the defendant car. And yet the operator drives blindly in front of that approaching car. This reckless conduct on the part of the plaintiff car is established by the plaintiff's own evidence; not by inference from the evidence, but by the plain and ordinary meaning of the testimony.

Up to this point there is not one word of evidence tending to prove the negligence of the defendant, except the fact that a collision later took place.

He was driving along as any traveler would on his own side of the road, safe from the danger of approaching cars in front, and as far out as the line of the road would permit for the passage of cars from the rear with the duty of particularly watching the Promenade, when in less than six seconds away he was confronted with the defendant car headed directly across his course.

about the middle of the Promenade he was suddenly confronted with the plaintiff's car, at nearly or quite at a right angle, crossing his track directly in front of him. There was nothing so far as the evidence shows to reasonably put the defendant on guard against the sudden appearance of the defendant car or to warn him of its sudden turn across the street. Mrs. Wright testified that Wright put his hand out before she saw the defendant car.

As bearing upon the sufficiency of warning, it must be kept in mind that the distance between the front of the plaintiff car, when it was turned across the railroad track, and the line of Washington street was less than 15 feet; and if the defendant car was close to the line of Washington street, the plaintiff car was less than 15 feet, by the width of the defendant car, or actually less than 10 feet from the direct line of French's path, when the defendant blindly headed across the car tracks, without once casting an eye to observe the position of the oncoming car.

This short distance placed him so quickly in the path of French, that even, if upon cool afterthought, it appeared that he might have stopped his car, yet in the emergency which confronted him he might have reasonably conIcluded that he could not do so, and that his only course was to turn up the Promenade.

It was the duty, however, of the plaintiff car, under these conditions, to give the defendant, who had the right of way, such notice as to amply inform him of its intention to cross in front of him. And unless and until the defendant car had such notice it could not be charged with negligence in pursuing its course.

so watch and time the movement of the other car as to reasonably insure itself of a safe passage, either in front or rear of such car even to the extent of stopping and waiting, if necessary. This is no new rule, but simply the application of a well-established principle to new conditions. In Savoy v. McLeod, 111 Me. 234, 88 Atl. 721, 48 L. R. A. (N. S.) 971, it is said:

In fact it should be declared as a rule of law, governing the movement of motor vehicles under the conditions and circumstances of the present case, that a car intending to [4] Was, then, the defendant guilty of neg-cross the street in front of another car should ligence? This question involves the legal relations of the parties as they were, within a period of six seconds, occupying the street. There was no junction of crossing streets. The Promenade is a wide-mouthed avenue that leads from Washington street to the Eastern Promenade, so-called. It is 75 feet wide. Ten cars could turn into it abreast. The law of the road requires all vehicles approaching each other in opposite directions to keep to the right of the middle of the traveled part of the way. The defendant was in observance of that law, and was well out on the right-hand side. He had the right of way. He was in the place designated by law for him to travel. There is no evidence that he was driving at an excessive rate of speed. The evidence, in fact, shows that he was driving at a legal rate. The undisputed evidence shows that there was a car

"The court should establish as a law the rule which prevents injury or loss of life, rather than that which even invites or permits it. This rule is based upon reason and public policy."

We have gone somewhat in detail in describing the reckless operation of the plaintiff car, not on the ground of contributory negligence, but to show that the defendant was not required to anticipate such carelessness, and was therefore excused from the