DocketNumber： No. 3,033
Citation Numbers： 48 Cal. 409, 1874 Cal. LEXIS 167
Judges： McKinstry
Filed Date： 7/1/1874
Status： Precedential
Modified Date： 11/2/2024
The point presented in the petition for rehearing is ' that there is no averment in the complaint that the plaintiff sustained the injury in question without any fault on her ¡part.
It would seem that this omission has been held to render the pleading defective in Indiana, Illinois and Maine. (Michigan, etc., R. R. Co. v. N. Y. R. Co. 29 Ind. 528; The Chicago, etc. R. R. Co. v. Hazard, 26 Ill. 373; Buzzell v. Laconia Man. Co. 48 Maine, 113.)
We think the proposition that negligence on the part of the plaintiff is a matter of defense, to be proved affirmatively by the defendant, unless it can be inferred from circumstances proved by the plaintiff, is. sustained by the better reason. (Shearman and Redfield on Negligence, Secs. 43, 44; Penn. Canal Co. v. Bentley, 66 Penn. St. 30; Smoot v. Wetumpka, 24 Ala. N. S. 112; Johnson v. Hudson River R.R. Co. 5 Duer, 21.)
v In this class of cases, the complaint need not allege that 'the injury was done without fault.of the plaintiff. The petition for rehearing is denied.