Amedeo v. American Ry. Express Co.

288 F. 87, 1923 U.S. Dist. LEXIS 1638

Opinion

GARVIN, District Judge.

This is a motion by defendant for a bill of particulars. The complaint is rather vague and indefinite in its allegations of negligence. To accept it in such a form would be to permit the plaintiff too great a latitude and to confront the defendant with generalities only. For instance, plaintiff alleges violations of traffic rules of the police department ordinances of the city of New York and the state of New York. He embraces no small field in offering this choice to the defendant. He cites Rizzo v. McFadden, a decision rendered by Mr. Justice Blackmar in the Supreme Court, Kings County, Special Term, Part I:

“If an infant, non sui juris, was in the highway, and defendant in broad daylight ran down and injured it, the inference of negligence might be drawn, without determining whether it was excessive speed, inattention, failing to observe the road, or careless operation of the machine.”

That situation is not presented in the instant case. There is no suggestion here that the injury was sustained by a small child, which could not be expected to know how the accident happened. It may be that the plaintiff is unable to give all the particulars that defendant seeks, but he must comply with the demand as best he can. If a further bill is sought, the applicability of the decision of Judge Black-mar, supra, to the instant case, will receive further consideration. Of course, if plaintiff claims that defendant was negligent in more than one respect, he may so state.

The motion for a bill of particulars should be granted.