Griffin v. Cunard Steamship Co.

159 A.D. 453, 144 N.Y.S. 517, 1913 N.Y. App. Div. LEXIS 8165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1913
• Status: Published

Opinion

Clarke, J.:

The complaint alleges that the plaintiff was in the employ of the defendant steamship company, and while under said employment was stationed on the hurricane deck of the steamship Saxonia, at or near hatch No. 2 thereon; that he was struck by a draft containing several barrels of flour which was being raised from the pier upon said steamship, thereby throwing him from said hurricane deck and precipitating him down through said hatch and upon the olive deck of the said steamer through the fault, carelessness and negligence of the defendant, its agents, servants and employees. •

The answer alleges for a first defense that the injuries complained of were caused in whole or in part by the contributory negligence of the plaintiff; and for a second defense by the negligence of a competent fellow-servant or fellow-servants.

The plaintiff moved for a bill of particulars specifying, first, the facts showing what acts the plaintiff committed and which constituted his contributory negligence;. second, the facts showing the acts of negligence of the competent fellow-servant or fellow-servants which contributed to the accident, and from the order granting said motion the defendant appeals.

Prior to the trial the defendant should not be compelled to state the particulars required and thus limit and define its possible defense. Plaintiff knows "what he did and is required to prove his cause of action. Until he and his witnesses disclose the facts it would be extremely difficult, if not impossible, for the defendant company to comply with this order. It should not be thus improperly hampered. Upon considerations of sound public policy we have not allowed general examinations before trial in negligence cases. (Wood v. Hoffman Co., 121 App. Div. 636.) It seems apparent that if an order should require the defendant to give the particulars of the claimed contributory negligence the court must be prepared to grant an application for an order for plaintiff’s examination before trial to enable defendant to comply with the order for particulars. We are unwilling to embark on this course of procedure. The defense of contributory negligence in its very nature precludes the necessity for particularization. In our opinion this discretionary order should not have been granted.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred.

■ Order reversed, with ten dollars costs and disbursements^ and motion denied, with ten dollars costs.