Wolz v. Dry Dock, East Broadway & Battery Railroad — 36 N.Y. St. Rep. 328

Majority

p. 328

Charlotte Wolz, Adm’rx, App’lt, v. The Dry Dock, East Broadway & Battery R. R. Co., Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

Negligence—Pleading. .

In an action to recover for injuries caused by defendant’s car being thrown from the track against plaintiff, the complaint alleged that defendant so negligently and unskilfully conducted itself in not keeping the track and switch at that point in proper condition “ that its cars at many different times prior to the accident hereinafter mentioned were there thrown from the proper track, of which fact the defendant had knowledge.” On motion, the court struck out the words quoted as irrelevant and immaterial. Held, error; that the facts alleged were material and pertinent to the question of notice of the defect and were not objectionable as introducing other accidents to have an effect on the one in question.

Appeal from order striking out certain allegations in the complaint as immaterial and irrelevant.

U. H. Underhill, for app’lt; James & Thomas H. Troy, for resp’t.

The complaint states that the plaintiff’s husband was killed by the negligence of defendant. Apart of section 2 of the complaint was stricken out by the order appealed from. The whole section is as follows:

“ That the defendant so negligently and unskillfully conducted itself in not keeping the track and switch of said road at tho corner of Grand and Forsyth streets in said city in proper condition, that its cars at many different times prior to the accident hereinafter mentioned were there thrown from the proper track, of which fact the defendant had knowledge.”

That part of this section which avers that the defendant’s cars had been thrown from the track by a defective switch and track on previous occasions was stricken out. The pleading was proper as it stood. The fact that cars were repeatedly thrown from the track with the knowledge of defendant was material and pertinent in view of the fact subsequently stated that the accident happened at the corner of Grand and Forsyth streets, and that it was caused by the defective condition of the track and switch as to which the averment in the section is made. The complaint taken as an entirety is that the defendant kept a bad track and switch at the corner of Grand and Forsyth streets, one which would not hold the cars in place and which repeatedly failed, to defendants knowledge, and that- on the 8th of Nov., 1886, th.e car was cast against plaintiff’s husband by this very condition of the switch and track, and he was killed. The former instances of failure are only addressed to the question of notice of the defect and are not objectionable as introducing other accidents to have an effect on the one involved in this action.

The order should be reversed, with $10 costs and disbursements.

Order reversed, with $10 costs 'and disbursements, and motion denied.

Dykman and Pratt, JJ., concur.