# Robinson v. Western Pacific Railroad

> California Supreme Court · July 1, 1874 · 48 Cal. 409

URL: https://www.frixlaw.com/law-library/cases/5438388

## Case

- **Full name:** PATRICK ROBINSON and HANNAH ROBINSON, his Wife v. THE WESTERN PACIFIC RAILROAD COMPANY
- **Court:** California Supreme Court
- **Decided:** July 1, 1874
- **Citations:** 48 Cal. 409; 1874 Cal. LEXIS 167
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** McKinstry
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5438388

## Opinion text

By the Court:
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5438388. Public record. Not legal advice.