In House v. Meyer, supra, an action for damages resulting from the alleged negligence of the defendant, the complaint charged the negligence in general language, and the complaint on appeal was that a general allegation of negligence was insufficient to state such a cause of action.Summary of this case from People ex rel. Bradford v. Arcega
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
The demurrer should have been sustained. The allegations of the complaint as to negligence were insufficient. (Kellogg v. Northampton, 4 Gray, 65; Going v. Dinwiddie , 86 Cal. 638; Miles v. McDermott , 31 Cal. 273; Triscony v. Orr , 49 Cal. 617; Reardon v. San Francisco , 66 Cal. 493; 56 Am. Rep. 109; Pratt v. Gardner, 2 Cush. 63; 48 Am. Dec. 652; 1 Thompson on Negligence, 364.)
Reymert & Orfila, for Appellant.
C. C. Stephens, for Respondents.
The complaint is sufficient, and the demurrer was properly overruled. (Abbott's Forms, p. 452, form 545; 1 Boone on Code Pleading, 329; 2 Boone on Code Pleading, 309; 1 Estee on Pleadings, 655; Bliss on Code Pleadings, 259; Wilson v. Cunningham , 3 Cal. 241; 58 Am. Dec. 407; Sykes v. Lawlor , 49 Cal. 236; Davies v. Oceanic S. S. Co ., 89 Cal. 280; Smith v. Buttner , 90 Cal. 100; Whalen v. Arcata etc. R. R. Co ., 92 Cal. 669; Swain v. Fourteenth St. R. R. Co ., 93 Cal. 179; Kneir v. Watrous , 94 Cal. 594.)
JUDGES: De Haven, J. McFarland, J., and Fitzgerald, J., concurred.
DE HAVEN, Judge
The demurrer to the complaint was properly overruled. In an action like this, to recover damages resulting from the alleged negligence of a defendant, a general allegation of negligence upon the part of the defendant is sufficient. "The negligence is the ultimate fact to be pleaded, and is not a legal conclusion." (Bliss on Code Pleading, sec. 211.)
Nor was it incumbent on the plaintiffs to allege that they were not guilty of contributory negligence. (Robinson v. Western P. R. R. Co ., 48 Cal. 409.)
The appeal in this case is without merit.
Judgment and order affirmed.