Jenkins v. Montgomery

<p>1. Pleading — 'Declaration—Ad Damnum Clause.</p> <p>A declaration in an action, even though, sounding in damages, is not demurrable because it does not state the amount of damages claimed, in the form of an averment. It is sufficient if it appear in any part of the declaration. The ad damnum clause, while consistent with good form in pleading, is not indispensable. (p. 796).</p> <p>2. Municipal Cobpobations — Torts—Defects in Streets — Liability of Abutting Owners.</p> <p>The opening of a ditch in a public street, for the purpose of laying a pipe to connect a dwelling house with the water main, is not, per se, a nuisance, and does not make the owner of the house liable to a person injured by falling into the ditch, unless such owner has been guilty of negligence, (p. 799).</p> <p>3. Masteu and Sebvant — Liahilities to Third Persons — Worlc of Independent Contractors — Unguarded Excavation.</p> <p>If the owner of a house let the work of opening the ditch, and laying the pipe, to an independent contractor, and such contractor cause the ditch to be dug, and to be left open and unguarded, and a traveler upon the street fall into it in the nighttime and is injured, without fault on his part, such independent contractor is liable, (p. 799).</p> <p>4. Same — -Liahilities to Third Persons — Notice.</p> <p>The master is liable for the negligence of his servant in the . performance of a duty to the master within the scope of the servant’s employment. (p. 798).'</p> <p>5. Texal — Instructions—Construction Together.</p> <p>An. instruction which, deals only with matters relating to the quantum of damages, is not erroneous because it assumes right of recovery, provided another instruction has been given properly instructing the jury in regard to the essential facts constituting such right of recovery. In such case it is proper to consider the two instructions together, (p. 799).</p>