
    Alice Boardman, Admx. vs. John M. Creighton, and others.
    Knox.
    Opinion May 23, 1899.
    
      Pleading. Megligence. Death, by Wrongful Act. Master and. Servant. Agent. Stat. 1891, c. 1.24.
    
    A declaration in case to recover damages for injuries sustained, or for death occasioned by the alleged negligence of the defendant, should state the facts upon which the supposed duty of the defendant is founded. It is not enough to allege that the defendant has been guilty of negligence, without alleging in what respect he was negligent and how he became bound to use care to prevent the injury to the person injured or killed.
    A declaration by an administratrix, containing a single count, alleging that her intestate was killed through the negligence of the defendants when he was “legally at work” in the defendants’ quarry, and when he was “employed and lawfully at work in the defendants’ quarry by the license and permission and at the request of the defendants,” held bad on demurrer.
    
      Held; that such a declaration is insufficient, for the reason that it does not apprise the defendants, or the court, in what capacity the plaintiff’s intestate was employed in the quarry, whether as servant of the defendants, or the servant of an independent contractor, or as a licensee, or in some other capacity.
    On Exceptions by Defendants.
    
      This was an action against the defendants for alleged negligence by reason of which the plaintiff’s intestate was instantly killed. The defendants at the first term filed a general and special demurrer to the declaration, which demurrer,' after joinder on the part of the plaintiff, was overruled.
    To this ruling the defendants excepted.
    (Declaration.)
    “In a plea of the case, for that the said defendants on the eighteenth day of December, A. D. 1895, at Tliomaston were, and for a long time prior thereto had been, the owners, occupants and operators of a certain limerock quarry, and were then and there engaged in quarrying limerock in which they employed a large number of men; and it was the duty of the defendants in the operation of said quarry to provide suitable tools and machinery and other appliances for the carrying on of said work, and also a safe and secure place for all persons employed therein, either by themselves, their agents or contractors, as said defendants, on said eighteenth day of December, 1895, and for a long time prior thereto, reserved to themselves as operators of said quarry, the full and absolute control of said quarry in the management thereof, and were liable to all persons who were working therein whether employed by themselves or their agents, or to whomever was working therein by the license and permission of said defendants; and it was the legal duty of the defendants to see that the walls and bluffs of said quarry were examined from time to time to see if any rocks were loose or liable to fall upon the workmen employed and working therein, and to keep on hand suitable apparatus to examine said bluff or walls of said quarry to see if the same were safe and secure for all persons legally at work therein; and the said Frank E. Boardman, then in full life, on the eighteenth day of December A. D. 1895, was then and there employed and was lawfully at work in said defendants’ quarry in said Thomas-ton by the license and permission and at the request of said defendants, was then and there employed and working in said quarry in breaking and handling limestone in said defendants’ quarry; that said quarry before and on the day aforesaid had been excavated to a great depth, to wit: to the depth of seventy-five feet below the surface of the earth, and it was the duty of the defendants to keep said quarry and its sides and walls and all parts thereof in a safe, secure and suitable condition so that said Board-man and all persons working therein could safely perform their work therein; but the defendants, regardless of their duty on said eighteenth day of December aforesaid, and for a long time before that day, had not kept and maintained said quarry, its sides and walls and all parts thereof in such safe and secure condition, but on the contrary had negligently and carelessly excavated and removed limestone therefrom on the westerly side thereof so that the westerly side wall of limestone in said quarry was then and there so nearly perpendicular from the surface of the earth to a depth of seventy-five feet that sheets and masses of stone were liable to fall from said wall into said quarry to the great danger of all persons at work and employed therein, and negligently and carelessly to use or supply any means or precautions to prevent the falling of stones from the walls and bluff of said quarry upon the workmen employed therein and have carelessly and negligently neglected to make any examination of the walls of said bluff in said quarry to see and ascertain if said walls were secure and in a safe and suitable condition, or whether rocks from any portion thereof were liable, to fall therefrom and that thfe said defendants by themselves as operators of said quarry, and having full and absolute control thereof while said side wall was in such unsafe and dangerous condition continued to quarry limestone and in said quarrying to fire and explode heavy blasts of powder and dynamite near the foot of the westerly side wall whereby and by force of the concussion of said blasts sheets and masses of limestone in said walls or bluff of said quarry were loosened or detached therefrom and by reason thereof became and were more liable to fall therefrom into the bottom of said quarry where men were working and employed, and that by the negligence and carelessness of said defendants as aforesaid, said westerly wall was on the eighteenth day of December aforesaid and for a long time before that day had been in an unsafe, defective and dangerous condition by reason of loosened sheets and masses of limestone being in and upon said walls which then were and for a long time before had been liable at any moment to fall into the bottom of said quarry to the great danger of all persons working therein.
    “Yet the said defendants, well knowing the premises, and the great danger to which all persons working in said quarry were exposed, suffered said wall to remain in said unsafe and dangerous condition on said eighteenth day of December aforesaid and took no means to ascertain its unsafe and dangerous condition; and the said Frank E. Boardman, not knowing the unsafe, dangerous and defective condition of said bluff or wall and not knowing the loosened and insecure condition of said limestone in said walls, on said eighteenth day of December, A. D. 1-895, then in full life, and being then and there in the exercise of ordinary care, and legally at woi-k in said quarry, and having no means of knowing its unsafe condition, and while so working, a large mass of lime-rock fell from the westerly bluff about forty feet above where said Boardman was working in the bottom of said quarry, through the carelessness of the defendants, without warning or notice, upon said Boardman, causing instant death.
    “And the plaintiff avers that said Frank E. Boardman was killed and his death was caused by the wrongful acts and default of the defendants; and the plaintiff avers that she is the widow of said Francis E. Boardman, and has three minor children, etc., . . . . ” “whereby an action hath accrued to the plaintiff to have and recover of the defendants for the exclusive benefit of herself and her said children a fair and just compensation, not to exceed five thousand dollars with reference to the pecuniary injury resulting from the death of said Francis E. Boardman.”
    
      L. M. Staples, for plaintiff.
    The owner and operator of a quarry is liable to the plaintiff for any injury which he may receive through the negligence of the defendants when at work therein by the license and permission of defendants, A land owner is responsible in damages to one, who using due care, comes upon his premises at the invitation or inducement, express or implied, on any business to be transacted or permitted by him, for injuries sustained by the unsafe condition of such premises known to him, and which he has suffered to exist, or might have known by reasonable diligence or caution to have existed.
    Tí the owner of premises under his control employs an independent contractor to do work upon them, which from its nature is dangerous to persons who may come upon them by the owner’s invitation, the owner is not by reason of the contract, relieved from liability, and is bound to see the premises safe for all persons. Curtis v. Kiley, 153 Mass. 126; Stewart v. .Putnam, 127 Mass. 403; Stwrges v. Theological Education Society, 130 Mass. 414, 415; Woodman v. Metropolitan Railroad, 149 Mass. 335, and cases there cited.
    It is also held in Woodman v. Metropolitan Railroad, 9 Allen, 92, that the corporation was liable for the injury; and the fact that the work was done by an independent contractor would not exonerate it from liability — holding that the owners can not shift their liability upon any other person; and that the owners are liable.
    Counsel also cited: Sweeny v. Old Colony, etc., R. R. Co., 10 Allen, 368; Elliott v. Pray, Id. 378; Zoebisch v. Tarbell, Id. 385.
    The only question presented here is: are the defendants as owners liable to any person who is legally at work, and who came there, in this quarry, by the license and inducement and permission of the owners, regardless of who hires the man ?
    
      C. E. and A. S. Littlefield, for defendants.
    Sitting: Emery, Haskell, Whitehouse, Wiswell, Strout, Fooler, JJ.
   FoGLER, J.

This is an action on the case in which the plaintiff as administratrix of the estate of Francis E. Boardman, her husband, sues to recover of the defendants damages for the death of her husband and intestate under Public Laws of 1891, c. 124. The statute provides that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then the person who, or corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages brought by the personal representatives of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of his widow, if no children, and of the children, if no widow, and if both, of her and them equally, and, if neither, of his heirs.

The declaration, which contains a single count, alleges that the plaintiff’s intestate while engaged in working in a limerock quarry of which the defendants were the owners and operators, was instantly killed by reason of a large mass of limerock falling upon him from the bluff or wall of the quarry; and that such death was caused through the neglect of the defendants in not making necessary examination of the walls of their quarry and not taking proper precautions to prevent the falling of stone therefrom upon the plaintiff’s intestate and others engaged in the quarry. The declaration further alleges that the plaintiff’s intestate was legally at work in said quarry; and, in an amendment allowed by the court, that he was then and there employed and was lawfully at work in the defendants’ quarry by the license and permission and at the request of the defendants.

The defendants demur generally and specially to the declaration, and assign by way of special demurrer, first, that it does not appear by the declaration whose servant or agent the plaintiff’s intestate was, or by whom he was employed in said quarry; and, second, that it does not appear by the declaration what contractual or other relations, if any, the plaintiff’s intestate sustained to the defendants, or whether he was in the employ of the defendants, or of an independent contractor. The defendants contend that the declaration is insufficient for the reason that they are not therein informed whether the plaintiff claims that her intestate was their servant, or the servant of some other person, or was a mere licensee; in other words, whether it is claimed that he was under the control of the defendants, or of some other person, or as a licensee under the control of no one. The presiding justice overruled the demurrer, and the defendants except.

It is sound law, as contended by the plaintiff’s counsel, and sustained by the authorities cited by him, that the owner of a quarry or other premises owes to persons lawfully employed therein certain duties, and under a sufficient declaration is liable in damages for injuries received by a person so employed through a neglect of such duties; but the issue raised by the demurrer in the case at bar is not as to the liability of the defendants, but is one of pleading. The question is whether it is necessary that the declaration should allege by whom, and under whom, and under what circumstances the deceased was employed, and what relations, contractual or other relations, existed between - him and the defendants when he met his death. The degree and kind of care which the owner of premises owes to a workman employed therein vary according to the relation existing between the parties. The care which the owner owes to his servant over whom he exercises control and who acts under the master’s direction, differs in degree from that which he owes to a mere licensee and from that which he owes to the servant of an independent contractor.

“ The principal rule as to the mode of stating the facts is, that they should be set forth with certainty; by which term is signified a clear and distinct statement of the facts which constitute the cause of action or ground of defense, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment.” 1 Chitty on PI. 256. See Bean v. Ayers, 67 Maine, 488, 489. “The plaintiff cannot by the common law rule, in order to sustain a single demand, rely upon two or more distinct grounds or matters, each of which, independently of the other, amounts to a good cause of action in respect of such demand.” 1 Chitty PI. 249.

“When the plaintiff’s right consists of an obligation to observe some particular duty, the declaration must state the nature of such duty, which we have seen may be founded either on a contract between the parties, or on the obligation of law, arising out of the defendants’ particular character or situation; and the plaintiff must prove such duty as laid.” Id. 397.

The foregoing principles laid down by Mr. Chitty have been uniformly recognized and adopted in this country and in England. In Qantret v. Pgerton, L. R. 2 C. P. 371, the requisites of a good declaration in an action for negligence are well stated by Willis J. “It^ought,” he says, “to state the facts upon which the supposed duty is founded, and the duty to the plaintiff, with the breach of which the defendant is charged. It is not enough to show that the defendant 'has been guilty of negligence, without showing in what respect he was negligent, and how he became bound to use care to prevent injury to others.” In Smith v. Tripp, 13 R. I. 152, the court, after quoting the foregoing language of Willis J. adds, “So too, it is not enough to state a relation from which the duty may arise under certain circumstances, but, unless the duty necessarily results from the relation, the circumstances which give rise to it must likewise be stated.”

So, in Addison v. L. S. M. S. My. Co., 48 Mich. 155, the court held that a declaration in a case for a fatal railway injury is demurrable if it does not so state the cause of action that the defendant could, with reasonable certainty, ascertain in what respect it is charged with negligence, or if it does not count specifically upon some particular duty and breach thereof as causing the injury; and that it is not enough to refer to matters in an uncertain, doubtful and ambiguous manner as a kind of general drag to meet whatever evidence znay be presented.

In Kennedy v. Morgan, 57 Vt. 46, the court says: “If the pleader merely alleges the duty in his declaration, he states a conclusion of law, whereas the elementary rule is that the facts frozn which the duty springs must be spread upon the record so that the court can see that the duty is made out.”

In Penn. Co. v. Dean, 92 Ind. 459, the plaintiff claimed to recover daznages for injuries received on a railway train through the alleged negligence of the defendant’s servants. The complaint was adjudged insufficient because it did not state in what-capacity the plaintiff was upon the train. Tlie court says: “The rights and liabilities of the appellant could not be intelligibly adjudicated without the knowledge and consideration of tlie fact thus sought to be developed.”

To tlie same effect are Buffalo v. Holloway, 7 N. Y. 493; Sweeny v. O. C. N. B. B. Co., 10 Allen, 372; Matthews v. Bensel, 51 N. J. L. 30; Fay v. Kent, 55 Vt. 557; Trott v. Nor-cross, 111 Mo. 630; Hounsell v. Smyth, 97 E. C. L. 731; Hi Marcho v. Builders’ Iron Foundry, 18 It. I. 514; Lawler v. And. R. R. Co., 62 Maine, 467.

Applying to the case at bar the rules established by the foregoing authorities, we are of opinion that the declaration is insufficient for the reason that it does not apprise the defendants or the court in what capacity tlie plaintiff’s intestate was employed in the quarry, whether as servant of tlie defendants or the servant of an independent contractor, or as a licensee, or in some other capacity.

Exceptions sustained. Demurrer sustained.  