Deiss v. Southern Pacific Co.

It is earnestly urged that the complaint in this action does not charge the defendants, or either of them, with actionable negligence, and hence that it does not state facts sufficient to constitute a cause of action. We desire to call the court's attention to two well-established rules dealing with the pleading of negligence: (1) Unless the failure to act, upon which a plaintiff bases his right to recover, is negligent per se, or unless said failure excludes any hypothesis other than that of negligence, a complaint which merely sets forth the said failure does not state a cause of action…