Majority
p. 592[No. 19283. Department Two. December 29, 1893.] THOMAS HOUSE et ux., Respondents, v. MARIUS MEYER, Appellant. 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.)
Headnote
Negligence—Pleading—General Allegations. — A general allegation of negligence upon the part of the defendant is sufficient in an action to recover damages resulting from the alleged negligence of the defendant.Id.—Negligence an Ultimate Pact.—Negligence is an ultimate fact and not a conclusion of law.
Id.—Contributory Negligence—Complaint.—It is not incumbent upon the plaintiff in an action for damages for negligence to allege a want of contributory negligence.
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
The facts are stated in the opinion of the court.
Reymert & Orfila, for Appellant.
p. 593The 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. Areata etc. R. R. Co., 92 Cal. 669 ; Swain v. Fourteenth St. R. R. Co., 93 Cal. 179 ; Kneir v. Watrous, 94 Cal. 594 .)
C. C. Stephens, for Respondents.
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 Pac. R. R. Co., 48 Cal. 409 .)
The appeal in this case is without merit.
Judgment and order affirmed.
McFarland, J., and Fitzgerald, J., concurred.
Cases cited
- Joyce v. McAvoy 31 Cal. 273 p. 592
- Wilson v. Cunningham 3 Cal. 241 p. 593
- Sykes v. Lawlor 49 Cal. 236 p. 593
- Davies v. Oceanic Steamship Co. 89 Cal. 280 p. 593
- Whalen v. Arcata & Mad River Railroad 92 Cal. 669 p. 593
- Swain v. Fourteenth Street Railroad 93 Cal. 179 p. 593
- Robinson v. Western Pacific Railroad 48 Cal. 409 p. 593