Stillman v. Brush Electric Light Co. — 37 N.Y.S. 49

Majority

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(92 Hun, 504.)

STILLMAN v. BRUSH ELECTRIC LIGHT CO. OF ROCHESTER.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

Headnote

1. Pleading—Bill of Particulars—Action for Personal Injuries.

In an action against an electric light company for the death of plaintiff’s intestate from an electric current while trimming an electric lamp, where the complaint alleged that the lamp did not have safety appliances long in use, it was proper to require plaintiff to furnish a bill of particulars of the appliances referred to, the affidavit for the bill alleging that defendant had no knowledge of the appliances.

2. Same—Matter Known io Moving Party.

Where the complaint alleged that defendant maintained the lamp with a defective switch, and with wires improperly insulated, and failed to inspect the wires to see whether the current was grounded, it was error to require plaintiff to furnish a bill of particulars of the respects in which the lamp was defectively constructed and improperly maintained, and the place the current was grounded, though, in the affidavit for the bill, it was alleged that defendant was ignorant of the negligence or defects complained of or of the grounding of the wire, where an electrician familiar with defendant’s system swore that by simple, well-known tests defend-

, ant could determine the approximate location of a ground, and plaintiff swore that she was unable to give further particulars of the cause of decedent’s death than were stated in the complaint.

Appeal from special term, Monroe county.

Action by Nettie M. Stillman, as administratrix of Arthur B. Still-man, deceased, against the Brush Electric Light Company of Rochester, for the death of plaintiff’s intestate. From an order requiring plaintiff to furnish a bill of particulars, she appeals. Modified.

Argued before LEWIS, BRADLEY, and WARD, JJ.

Peter H. Van Auken, for appellant.

George F. Yeoman, for respondent.

The plaintiff, in her complaint, alleges that on March 10, 1893, the defendant was the owner of certain real estate, buildings, machines, dynamos, wires, and other appliances used in the manufacturing and supplying of electricity for the city of Rochester; that the defendant negligently maintained, as a part of its said plant for electric lighting purposes, a certain lamp, in the store of Garson, Myer & Go., of an imperfect and obsolete design and construction, and which did not have thereon certain improved appliances and attachments, which at said date, and long prior thereto, were and had been in general use in other cities in this country, and which were necessary at all times herein mentioned for the safety of persons who, in the exercise of reasonable and ordinary care, had occasion to handle said lamp, and to repair and trim the same, and defendant negligently maintained said lamp with a de

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fective switch, and other wires defectively constructed, and in close proximity to certain gas gets and lines of metal pipe, without having in, upon, and around said lamp and its connecting line of wire adequate and proper insulation and protection; that the defendant negligently maintained upon its said line of wire and circuit connected with said lamp in the store of Garson, Myer & Co. a large number of arc lamps for electric lighting purposes, which require the transmission of an electric current of. great strength and intensity, and dangerous to human life, “and the defendant at all times herein mentioned negligently maintained the same without providing wire properly insulated for the transmission of said current, and negligently maintained said line, and transmitted said current of electricity over a wire, the insulating covering of which was old, worn, torn, and imperfect, and useless for the purpose of insulation.” The complaint also charged the defendant with negligence in not inspecting the lines of wire in question to see whether they were properly insulated, or whether the current upon said line had become grounded. The complaint further alleged that on the day aforesaid the plaintiff’s intestate, Arthur B. Stillman, who was employed by the defendant as a trimmer of lamps, in preparing and trimming a defective lamp in the store of Garson, Myer & Co., in the proper discharge of his duties, was killed by a current of electricity, without fault on his part, and by reason of the negligence of the defendant aforesaid; and the plaintiff brings this action to recover damages for such killing. The special term, upon the application of the defendant, ordered the plaintiff to deliver to the defendant’s attorneys “a bill of particulars of the plaintiff’s claim, duly verified, stating what improved appliances and attachments in general use at the date of the death of the said Arthur B. Stillman, referred to in the complaint, were not upon the lamp in the store of Garson, Myer & Co., referred to therein, and in what respect said lamp was negligently maintained, and in what respect the said lamp was defectively constructed, and where the ground upon the circuit upon said line mentioned in the complaint was located, and in what manner it was related to the death of said Stillman, and that the plaintiff be precluded from giving any evidence in respect to such matters upon the trial, other than as specified in said bill of particulars.”

The appeal from this order brings the question before us. The complaint and the answer of the defendant (which denied its negligence and its liability), and the affidavit of George W. Archer, president of the defendant, in which he alleged that the defendant was ignorant of the negligence complained of, or of the defects complained of, or their character, and. had no knowledge of what improved appliances or attachments were not upon the lamp, or of any ground upon said circuit or line at said time, were the papers upon which the defendant moved for the order stated. These were met, on behalf of the plaintiff, with the affidavit of William A. Br'eese, a practical electrician, and who was familiar with fhe machinery and system of the defendant, in which he stated that the defendant was able to detect any grounds by simple tests well known to elec

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tricians, and determine, within a short distance, the location of said grounds, and could determine by tests the presence of a ground, and its approximate location, and it required but a short time to locate the exact point of a ground, by sending men over the circuit; also, the plaintiff's affidavit, in which she stated positively that she was unable to give any, or make any, further particulars in regard to the cause of the accident by which her husband met his death, and the particular acts of negligence of the defendant in relation thereto, than her complaint stated; and she made a part of her affidavit the testimony taken upon a coroner’s inquest held upon the body of her husband to ascertain the cause of his death, in which the foreman of the defendant was called as a witness, and claimed that his evidence indicated such a knowledge of the situation and circumstances causing the death as would show that the defendant should know the facts sought to be obtained by the bill of particulars; and the appellant’s contention here is that she should not be required to furnish any of the particulars required by the order.

We are of the opinion that the first branch of the order, requiring the plaintiff to state what improved appliances and attachments were in general use at the death of the intestate that were not upon the lamp in question, should be sustained. If the plaintiff had in mind, or could ascertain, any such improvements, of which the defendant claims to be ignorant, it is proper that she should state them, so that the defendant may be apprised of the particular improvements claimed. As to the other branch of the order, requiring specifications as to wherein the negligence of the defendant consisted, with regard to the lamp and its connection, there is more difficulty. The defendant cites, as sustaining its contention in this regard, O’Hara v. Ehrich, 11 N. Y. Supp. 52 , where the general term of the superior court of Hew York held that the plaintiff should give particulars of the negligence of the defendant under the general statement in the complaint that the injury was caused by the negligent and improper construction, management, and operation of an elevator, and the case of Lahey v. Kortright, 13 Civ. Proc. R. 352, where the same court, in an action to recover damages, claiming a defect in the title to premises sold, required a bill of particulars showing wherein the title was defective; and citing also Keairns v. Railroad Co. (Sup.) 1 N. Y. Supp. 906 , where a driver of one of defendant’s cars alleged that he was injured through the defendant’s negligence, by being thrown from a car which was “out of repair and in an unsafe condition,” and the complaint specified in what respect the car was out of repair, and unsafe to a certain extent. The court held that, if the plaintiff sought to prove particulars not alleged under his general allegation of negligence, he must give, as to such, a bill of particulars. In McCarthy v. Railroad Co. (Super. Buff.) 27 N. Y. Supp. 295 , also cited by the defendant (the special term of the superior court of Buffalo), in an action where a brakeman was killed, the complaint alleged the ground of action in a very general statement that defendant negligently operated its trains of cars through incompetent servants, and under insufficient rules, and with unsafe appliances, and over defective tracks. The

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court held that the plaintiff should give particulars as to the train on which the deceased was killed, when killed, where the track was defective, what rules were insufficient, and in what respect the defendant was negligent in operating its train. It will be seen that these cases ai. based substantially upon bald allegations of negligence, without specifications as to the particular negligence of the defendant, and in cases where the plaintiff would be expected to know, or upon reasonable inquiry could ascertain, the particulars. In the case before us the plaintiff, in her complaint, has been much more specific, and has amplified her general charge of negligence with several important particulars. Further than that she is unable to go, and insists that the defendant is much better able to state the facts sought by the bill of particulars, from its knowledge of the situation, than she possibly can be. The plaintiff’s claim is that the deceased met with his death from the use by the defendant of that wonderful and mysterious power which in the last few years has been utilized and harnessed into the uses of business and the purposes of society. To one inexperienced in the manner of making this force available, it is like a sealed book, and only those who have made a business of studying and operating electricity can understand its operations or its dangers. It seems absurd, then, for the defendant, who is so much better equipped and better informed on the subject, to require this information from the plaintiff. In Donohue v. Meares (Sup.) 19 N. Y. Supp. 585 , where an administrator sought to recover damages for the death of a decedent who was burned to death while engaged as an employé in the defendant’s hotel, and the only allegation of negligence consisted in this: that the defendant did not provide a reasonably suitable or safe place for the deceased to sleep in, and the “want of care of the defendant in failing to provide reasonably safe means of egress in case of fire or accident in and about said building and premises,” defendant moved for a bill of particulars as to these general allegations, which was denied; and Judge O’Brien, in speaking for the court (general term of the First department), says:

“While the power of the court to order hills of particulars extends to all descriptions of actions, we think that caution should be exercised in requiring bills of particulars in actions for negligence, and particularly where the action is brought, not by the person injured, but, as here, by one claiming in a representative capacity. Where the negligence alleged results in death, and the action is brought by an administrator, the latter ordinarily is obliged to obtain his evidence and facts from sources other than his own personal knowledge, and the defendant is ordinarily in possession of facts bearing upon the cause of death charged through his negligence. No rule can be formulated with respect to any class of cases, much less with respect to actions of negligence, as to when a bill of particulars will be required, it being necessary to determine, upon the facts presented upon the application in each case, whether it should be granted or denied.”

We adopt these views, and they seem exceedingly appropriate to the case at bar.

We have reached the conclusion that the order of the special term should be modified so as only to require the plaintiff to deliver to the attorneys for the defendant, within 20 days from the service of-

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this modified order, and a notice of its entry, a bill of particulars, duly verified, stating what approved appliances and attachments in general use at the date of the death of Arthur B. Stillman were not upon the lamp in the store of Garson, Myer & Co., referred to therein, and that the other portion of the order of the special term be reversed, but without costs of this appeal to either party. All concur.