148 N.Y.S. 646 | N.Y. App. Div. | 1914
Lead Opinion
In the complaint the plaintiff, after having detailed his injuries, in the 5th paragraph alleges:
" Fifth. That said injuries to said plaintiff were caused solely by reason of the wrongful act and acts, carelessness,
In the 2d and "3d paragraphs of the answer are alleged the matters of which the defendant is required to give particulars, as follows:
“Second. Alleges upon information and belief that any alleged injuries sustained or suffered by the plaintiff herein at the time or on the occasion referred to, and alleged in the complaint, were caused, in whole or in part, or were contributed to, by the negligence and want of care of said plaintiff, and not by any negligence or default or want of caré on the part of this defendant, and if any negligence or fault or want of care, other than that of the plaintiff caused, or contributed to cause, such alleged injuries, it was the negligence or fault or want of care of a fellow servant or fellow servants of said plaintiff, in the employment of defendant.
“ Third. Alleges upon information and belief, that any alleged injuries sustained or suffered by the plaintiff herein at the time or on the occasion referred to, and alleged in the complaint, were caused in whole or in part, or arose out of the
If in any case the defendant should properly be required to give particulars of such defenses alleged the plaintiff in this case has forfeited his right thereto by the generality of his allegations of negligence and the multiple charges made, a few of which only can be true. Where a plaintiff alleges specific negligence which fairly gives notice to a defendant of the point in issue he stands in a better position before the court to demand that the defendant be specific in the allegations of his defense. Where, however, his complaint contains a dragnet allegation of negligence plaintiff is in no position to ask the enforcement of a rule as against the defendant which he refuses to adopt himself. Before the plaintiff is entitled to know what fellow-servants caused the accident, or what risks are claimed to have been assumed, or with what contributory negligence he is charged, he should specify the particular negligence which he claims caused his injury.
Before the amendment of the Labor Law and of the Code requiring contributory negligence to be pleaded and proven as an affirmative defense (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 202a, added by Laws of 1910, chap. 352; Code Civ. Proc. § 841b, added by Laws of 1913, chap. 228) the plaintiff was often denied relief because of the impossibility of obtaining proof as to how the accident happened, so as to show that he was guiltless of contributory negligence. It was deemed a harsh rule to put this burden upon the plaintiff, especially in case of an accident resulting in death, and in any case it was deemed that the burden of proof should properly be with the defendant to establish by a preponderance of the evidence that the negligence of the party injured contributed to the result. To remedy these apparent inequities it is fair to presume that the change of rule was made by the Legislature, and the law should be so construed as to give to a plaintiff in a negligence action the full benefit which it was apparently contemplated that a plaintiff should have. In practical experience,
The order then appealed from should be reversed for three reasons:
First. Because the allegations of plaintiff’s complaint are not specific, so as to entitle him to ask greater particularity in the defendant’s answer.
Second. Because, as stated by Justice Clarke in the Griffin Case (supra): “The defense of contributory negligence in its very nature precludes the necessity for particularization. ” It is almost universally based upon the evidence produced by the plaintiff.
Third. Because to require particularization would require the granting of an order to examine the plaintiff before trial, which is a course of proceeding that the court should not adopt for reasons of public policy.
Kellogg, J., concurred in result in memorandum in which Lyon, Howard and Woodward, JJ., concurred.
Concurrence Opinion
When the Legislature provided that contributory negligence was a defense to be pleaded and proved I think it meant it
Lyoh, Howard and Woodward, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.