Herrick v. Oakland Motor Co.

THE COURT.

This is an appeal from a judgment in plaintiff’s favor in an action for damages arising out of a collision between the defendants’ automobile and the plaintiff’s motorcycle. The appeal is upon the judgment-roll, and the only question presented for determination is as to whether the complaint states a cause of action.

The complaint alleges that upon the sixteenth day of August, 1913, the plaintiff was riding and operating a motorcycle in a southerly direction along the westerly side of Van Ness Avenue in the city and county of San Francisco, and that the defendants were operating an automobile in a northerly direction along the easterly side of Van Ness Avenue; and that “when said plaintiff, riding and operating said motorcycle as aforesaid, reached a point on said southerly side of Van Ness Avenue near the southwest corner of Van Ness Avenue and Jackson Street, said defendants, without any notice or warning of any kind to said plaintiff, with great speed and rapidity altered the course of said automobile, proceeding in a northerly direction along the easterly side of said Van Ness Avenue from said easterly side of said Van Ness Avenue toward the westerly side of said Van Ness Avenue, and drove said automobile into and against said plaintiff, riding and operating said motorcycle as aforesaid, then and there throwing him to the ground and inflicting upon him severe personal injuries. ’ ’

It is the defendants’ contention that the foregoing averments of the plaintiff’s complaint do not state a case of actionable negligence, for the reason that it is nowhere set forth therein or elsewhere in said complaint that the alleged acts of defendants were negligently done, nor that they constituted such negligence on their part as to give rise to a cause of action. It is further contended by the appellants that the inference of negligence does not arise from the facts which are set forth in said complaint

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We are of the opinion that neither of these contentions is to be sustained. It is quite a well-settled rule of pleading in this state that in actions for negligence, while it is permissible to plead negligence in general terms, specifying the particular act or acts upon which the pleader relies as constituting such negligence, this rule applies only to cases where the acts as alleged might or might not have been negligently done, and has no necessary application to a ease wherein the acts complained of and specifically set forth are such that the inference of negligence necessarily arises from their enumeration.