Stephenson v. S. Pac. Co.

Citations

• 102 Cal. 143
• 36 P. 407
• 1894 Cal. LEXIS 608

Syllabus

<p>Negligence—Pleading—General Allegation.—In pleading negligence, it is sufficient to allege the negligence in general terms, specifying, however, the particular act alleged to have been negligently done.</p> <p>Id.—Sufficienct of Complaint—Special Demurrer.—Where the act by which the injury was brought about, and the negligent manner of its performance, is specified, but the statement of other facts auxiliary to this fact may tend to a clearer conception of the principal act, the complaint is good except as against a special demurrer.</p> <p>Id.—Questions of Law and Fact—Nonsuit.—Where the facts are admitted or proven without contradiction, the court will determine whether or nob they establish negligence, or show contributory negligence, but where the conclusion is open to debate, it is one for the jury, under proper instructions from the court, and a nonsuit should be denied.</p> <p>Id.—Instructions, How Considered.—Instructions are to be read and considered as a whole, and the fact that when taken separately some' of them may fail to enunciate in precise terms, and with legal accuracy, propositions of law, does not necessarily render them erroneous; but it „ is sufficient if all the instructions taken together, and not being inconsistent with each other or confusing, shall give to the jury a fair and just notion of the law upon the point discussed.</p> <p>Id.—Instruction Ignoring Contributory Negligence—Jury Not Misled.—Where the jury was repeatedly instructed, in clear and explicit language, that plaintiff was not entitled to recover, unless she was at the time of the accident herself exercising ordinary care to avoid the injury of which she complained, it is not to be reasonably supposed that the jury was misled to the prejudice of appellant because a single instruction upon the subject of the defendant’s negligence omitted to say any thing upon the subject of the contributory negligence of the plaintiff.</p>