Richmond v. Second Avenue Railroad

Headnote

Bill of particulars—Negligence.

In an action for injuries alleged to have been caused by the plaintiffs being precipitated beneath the wheels of defendant’s car by reason of the carelessness and recklessness of the persons in charge thereof, a denial of a motion to require a bill of particulars of the alleged careless and reckless acts is proper.

Appeal from order denying motion for a bill of particulars.

Action for injuries alleged to have been caused by the negligence of defendant’s servants. The complaint alleged that while plaintiff was riding on one of defendant’s cars he was precipitated therefrom by the gross carelessness and recklessness of the persons in charge of the car.

That, as the result of said carelessness, recklessness and negligence of the said employees of the said defendant, the plaintiff was thrown and precipitated from the said car, and was hurled beneath one of its front wheels, which passed over his right leg, and so greatly crushed, mangled and lacerated it that, by reason thereof, it' became necessary to amputate, on the same day, the said leg just below the knee joint

The moving affidavit was as follows : That defendant intends in good faith to defend this action. That neither the defendant nor its officers nor agents know of any negligence such as is al

leged in the fourth and sixth paragraphs of the complaint, and that the defendant cannot properly answer or prepare for trial herein unless it knows what acts, or omissions to act, the plaintiff claims or proposes to claim, on the trial of this action, constituted the alleged negligence of the defendant’s employees, and also how it is claimed that such acts or omissions to act caused the plaintiff to be thrown and precipitated from one of defendant’s cars. That this deponent has made diligent inquiry as to any act of negligence on the part of the defendant or its employees, and has been unable to procure - any clue by which he is able to even guess at the acts or omissions to act, such as it will be necessary for the plaintiff to prove on the trial of this action in support of the very general allegations in his complaint, wherein he merely states that, by reason of the gross negligence of employees of the defendant, “ the plaintiff was thrown and precipitated from the said car and was hurled beneath one of its front wheels, which passed over his right leg, and so greatly crushed, mangled and lacerated it that, by reason thereof, it became necessary to amputate, on the same day, the said leg just below the knee joint” That in the complaint there is no fact alleged which shows any negligence on the part of the defendant or its employees, unless it is held by this honorable court that the allegation that the defendant was guilty of negligence, whereby the plaintiff was thrown down, is an allegation of fact, and not the allegation of a conclusion of law from facts not stated.