96 N.Y.S. 761 | N.Y. App. Div. | 1905
" The plaintiff’s intestate was a fireman upon one óf the defendant’s 'engines. ' On or about the 5th. day of October,. 1904 the engine, ■exploded, thereby causing his death. The action is brought for ■damages upon the claim that the death was caused by the negligence • of the defendant. The allegation,'of which a bill "of particulars is asked, is contained in the 3d paragraph of the complaint. It is there alleged ijhat the accident was. caused “ by the fault, neglect .and want of care on the part- of defendant, its officers, superin'tend■-ents, managing agents and employees^ in using or permitting the use ■of said engine while in a weak, dangerous, defective and unsafe condition, and unfit for use, because of such weakness, want of repair and strength to do the work assigned it ; because of its brakes, levers, throttle, valves and other parts being out" of repair, defee
In Burke v. Frenkel (95 App. Div. 89) it was held, in an action to recover by a guest in defendant’s hotel for injury caused by the falling of a window, in which it was alleged that the window and the appliances were “ defective, worn and rotten and otherwise out of repair,” that the plaintiff should be required to state in what particulars the window and its appliances were defective, worn, rotten or out of. repair. The principle of that decision must determine this motion. The happening of an accident is no indication of negligence, except in a peculiar class of cases to which the doctrine of res ipsa lo'quii/ar has been applied. The object of a complaint is to notify the defendant of the specific fault of which the plaintiff complains. This plaintiff has been given full opportunity to examine this engine with her expert, and it is fair that the defendant should be apprised of the respect in which negligence is charged by the plaintiff, to the end that it may be prepared to meet. such claim upon the trial. The fact that the plaintiff is an administratrix with no personal knowledge of the details of her cause of action does not authorize us to overlook the purpose of a pleading or authorize plaintiff to make general allegations in her complaint of which she confesses she has no specific proof and trust to th & finding of a cause of action from the defendant’s witnesses upon the trial.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the inotion granted, without costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, requiring the plaintiff to state definitely in what respect it is claimed that the engine was weak, dangerous, unsafe and unfit for use, and what brake, lever, throttle, valve or other part thereof was out of repair, defective, unsafe or unfit for use, without costs.
