Warshawsky v. Raritan Traction Co.

Per Curiam. The ground upbn which this demurrer rests is that the declaration fails to negative contributory negligence on the part of the defendant. This is not necessary. It is sufficient if the contributory negligence of the plaintiff does not appear from the facts set out in the declaration. The demurrant seems to have been misled by a statement appearing in our decisions in the case of Falk v. New York, Susquehanna and Western Railroad Co., 27 Vroom 384. In [242] that case we declared that “it. is not necessary for the plaintiff to circumstantially deny negligence on his part. After the averment of negligence on the part of the defendant, causing the injury, a general negation of neglect on his part is entirely sufficient.” The presence of the last clause in the final sentence of this quotation is due to the fact that, in the declaration then under consideration, there was a general negation of neglect on the part of the plaintiff. The demurrer should be overruled.