122 N.Y.S. 732 | N.Y. App. Div. | 1910
Lead Opinion
As to the first objection. The allegations of the complaint, so far as they charge the defendant with negligence, are in effect: 1. That the defendant at the time of the accident did not have competent and skillful engineers in charge and control of the running of said engine. 2. That it did not provide a suitable, safe and sufficient roadbed over which to operate its engines and cars at said plant. 3. That it did not see to it that the engines and cars were properly inspected and maintained. 4. That it did not supply plaintiff with suitable and safe means,, material, implements, dráwheads, connecting bars and light, and maintain the same, to enable plaintiff to safely perform his duty as brakeman. 5. That it did not have proper and safe rules and regulations in running and operating said
Clearly, an inspection of the defendant’s plant and property at the time the order in question was made could not have given to- the plaintiff any information respecting any of the charges of negligence which he alleges against the defendant in view of the fact that such inspection is sought after three years from the time when the accident happened. Mo inspection could disclose whether or not the defendant had competent or skillful engineers or whether it saw to it or did not see to it that the engines and cars were properly inspected and maintained, or as to whether or not it supplied the plaintiff with suitable and safe means and- appliances with which - to perform his work or whether or not it promulgated rules for the purpose of insuring his safety. Those are all matters which can only be established by witnesses who were present at or about the time of the accident. There is nothing that can be seen at this time by the plaintiff or by his representative that will throw any light upon either of those questions.
Whether or not the defendant provided a suitable, safe and sufficient roadbed at the time- of the accident, three years before this application was made, cannot be discovered by any inspection or examination which can be made at this time.
The allegations of negligence contained in the notice served under the Employers’ Liability Act,, while more specific, are of the same general character." It is therein alleged that the drawhead and connecting bar were out of order, but it is nowhere suggested in the petition that such drawhead or engine or connecting bar is in the same condition now as it was at the time of the accident. A court would almost take judicial notice of the fact that those conditions would have materially changed in a plant of this character during a period of three years.
It is proper to inquire what the plaintiff and his representative _?.an be reasonably expected to discover from an inspection if now
The plaintiff has utterly failed to show that any conditions which might be discovered by inspection at the defendant’s plant at the present time are the same as existed at the time of the accident, and upon which the defendant’s negligence is based, and for that reason the order should be reversed.
Having reached such conclusion, it is unnecessary to consider the effect of the amendment to section 803 of the Code óf Civil Procedure, to which attention has been called.
Concurrence Opinion
(concurring):
The order in question permits the plaintiff and a representative “ to forthwith inspect the place in defendant’s premises at the city of Lackawanna, New York, where the accident to the plaintiff occurred, and the engine, car, connecting bar between them, the roadbed and track over which such engine and car was
While section 803 of the Code of Civil Procedure, relating to the discovery of books and papers, was amended in 1909 (Chap. 173) so as to include any article or property in possession of a party or under
I concur, therefore, for reversal of the order.
Robson, J., concurred.
Sic.
Dissenting Opinion
(dissenting):
I think the order should be modified and affirmed.
In September, 1907, the plaintiff was employed as a brakeman by the defendant and, as his complaint alleges, was engaged in coupling an engine to a car standing on the tracks of the defendant when one of the defendant’s engines without any warning ran against the car to which plaintiff was coupling the engine and injured him so that his leg was amputated. He has brought his action claiming that the defendant was negligent. He charges several acts of negli-. gence — that the roadbed was inadequate; that the drawheads and connecting bar were not suitable, etc.
The severity of his injuries prevented him from knowing the precise condition at the time he was injured. He asked the defendant to be permitted to inspect its car, appliances and roadbed, and this privilege was denied him. He applied to the court at Special Term for an order of inspection in pursuance of section 803 of the Code of Civil Procedure, as amended by chapter 173 of the Laws of 1909, and the court, in its discretion, granted the order. I can see no abuse of discretion in granting this order. It may be that an inspection by the plaintiff will be of no service to him, but he has been very seriously injured while in the employ of the defendant, and if that injury is due to the negligence of the defendant, as he charges, he ought to have the fullest opportunity to prove it, and the defendant seems bound to prevent any opportunity for him to do so.
IE the examination proves fruitless, then that is his misfortune.
We cannot say in advance that the plaintiff may not be able to prove that the same condition exists now as at the time the accident occurred. He cannot prove that fact until lie knows the present condition, and then he can prove by witnesses whether the condition is unchanged. In any event an examination of the present condition of affairs may enable him to demonstrate that the defendant was negligent in some of the particulars charged which caused the injuries to him. We have one patent fact alleged in the complaint, that while in the performance of his duties in coupling an engine to a car in the, yards • of the - defendant, the car, at which he was at work, was run into by another car .at a high rate of speed, causing his injuries. With that fact to start with he should be given every opportunity, to prove his case.
The defendant does not claim that it cannot readily produce, for inspection the car and other appliances sought to be examined. In fact, it has photographs of this property denoting that it can be identified. ■
I think the order -is too broad.' It provides for an inspection “ forthwith.” It should be,"say, upon ten days’ written notice to the defendant’s attorneys. The plaintiff says the accident occurred in the “tunnel-like inclosure,” which is reasonably definite for the place. The inspection of “the engine, car [and] connecting bar between them ” should be made at this place, or at such other convenient place on the defendant’s premises as the defendant may select. The articles to be inspected, aside from the roadbed, are all movable property, and the place of inspection is not very important. The reasonable convenience of the defendant should be considered in fixing the date for the inspection, and the time for making it should be limited.
. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Concurrence Opinion
concurred; concurring memorandum by Kbuse, J., in which Hobson, J., concurred; Speing-, J., in a memorandum, dissented, and voted for modification and affirmance.
