Christie v. McCall

[547]

KERRIGAN, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action brought to recover damages for personal injuries sustained in a collision between the defendant’s automobile and the plaintiff upon his bicycle, alleged to have occurred through the negligence of the defendant in the operation of his vehicle.

The first point made by the defendant for a reversal of the judgment is that the court erred in overruling his demurrer to the complaint. The complaint is in two counts, the first of which is attacked on the general ground of lack of facts, and further on the grounds of ambiguity and uncertainty in its failure to specify the particular acts constituting the negligence complained of. In this behalf this count of the complaint merely in effect alleges that the defendant neglected and omitted to operate his automobile so as to prevent it from running into the plaintiff and injuring him.

Under the authorities in this state this is a sufficient allegation of negligence, for they hold that it is sufficient to charge negligence by a general averment that the defendant negligently did the particular act which resulted in the damage to plaintiff.

(Rathbun

v.

White,

157 Cal. 248, 254, [107 Pac.

309]; Arbunich

v.

United Railroads,

28 Cal. App. 291, [152 Pac. 51];

Smith

v.

Buttner,

90 Cal. 95, 99, [27 Pac. 29];

Stein

v.

United Railroads,

159 Cal. 368, [113 Pac. 663]..)