O'Brien v. New York Central Railroad

186 A.D. 651, 175 N.Y.S. 473, 1919 N.Y. App. Div. LEXIS 6476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1919
• Status: Published

Opinion

H. T. Kellogg, J.:

These are appeals from orders requiring the plaintiffs in two actions to serve bills of particulars. The complaint in each action alleges that the plaintiff was traveling as a passenger in an electric surface railway car of the Kingston Consolidated Railroad Company along a street in the city of Kingston; that the street is crossed by railroad tracks of the New York Central Railroad Company; that a locomotive engine of that railroad was moving on the tracks at the street intersection; that owing to the negligent operation of the electric car, and the negligence of both of the defendant railroad companies, the car and the locomotive came into collision; that as a result of the collision the plaintiff was injured. The defendant, the Kingston Consolidated Railroad Company, procured the orders which required each plaintiff to specify, among other things, the particulars wherein that company was negligent in the operation of its electric car. The plaintiffs could make out prima facie cases against the Kingston Consolidated Railroad Company upon the trials by showing the collision, for, under the circumstances, negligence on the part of that company would be inferable therefrom. (Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 386.) Since the orders required the plaintiffs to specify in bills of particulars facts which they would not be required to prove upon trial they were in these respects erroneously granted.

The orders should be modified accordingly.

Orders modified as per opinion, and as modified unanimously affirmed, with ten dollars costs and disbursements to the appellants.