Kleineck v. Reiger 107 Iowa 325

Granger, J.

I. The petition contained no averment as to a want of contributory negligence by the plaintiff. There was a motion in arrest of judgment, on the ground, among others, that the petition did not state a cause of action, there being no allegation that the plaintiff was without negligence on his part. The court overruled the motion, and error is assigned on the ruling. It is conceded by appellee that the rule obtains in some cases that a want of contributory negligence must be averred and proved; but it is said this is not one of them; that the averments in this case are more in the nature of an unlawful assault. The petition charges negligence., and nothing more. It says that the act was “carelessly, negligently, and wrongfully” done, and such are the usual averments in -actions for negligence. In Gregory v. Woodworth, 93 Iowa, 246, we used this language: “It is a general rule, established by a long line of authority, that a party cannot recover for an injury resulting from the negligence of another, if, notwithstanding such negligence, he might have avoided it by the exercise of ordinary care on his part, or if he in any way contributed to the injury; 'and the burden is en the plaintiff to show his freedom from negligence. Plaintiff, in, his petition, must show a cause of action, .and his pleading is not sufficient without an averment of his own case.” This is followed in Stuber v. Gannon, 98 Iowa, 228. Both of those cases were action for injuries by dogs, and the liability is a statutory one, which fact leads appellee to- think they are not applicable. Their force is to make the general rule'announced in the Gregory-Woodworth Case apply to this case, rather than otherwise, because the statute, in fixing the liability for dogs, does not, in terms, make the fact of a want of contribu*327tory negligence an element of recovery, and tbe application of the rule to such cases is an extension, rather than an abridgment of.it. We think the case of Rabe v. Sommerbeck, 94 Iowa, 656, is quite in point. In that case the plaintiff went to defendants a pharmacist, and asked for whisky and quinine, and by mistake he received some drug, thought to be croton oil, that made him sick. The petition contained no averment as. to contributory negligence, and, after verdict, there was a motion in arrest of judgment, and we held that it should have been sustained. The statute then in force provides that: “If the facts stated by the petition do not entitle the plaintiff to any relief whatever, advantage may be taken by motion in arrest of judgment, before judgment is entered.” Code 1873, section 2650. See, also, Baird v. Morford, 29 Iowa, 531. We hold this case to'be within the general rule aFove’stated, and that the petition did not state a cause of action. The motion in arrest of judgment should have been sustained. — Reversed.