175 A.D. 113 | N.Y. App. Div. | 1916
The plaintiff has recovered for personal injuries caused by her being struck by defendant’s automobile while she was going northerly across One Hundred and Twenty-fifth street on the westerly side of Park avenue in the forenoon on the 2d day of June, 1914, and the automobile was" going easterly on the southerly side of One Hundred and Twenty-fifth street.
At the commencement of the trial and before any evidence was taken the defendant moved that the complaint be dismissed on the ground that it failed to state facts sufficient to constitute a cause of action in that it merely charges negligence generally without charging any act of negligence on the part of the defendant. The attorney for the plaintiff thereupon drew the attention of the court to the bill of particulars and claimed that it was part of the pleadings; but the attorney for the defendant maintained that a bill of particulars could not be used to amplify the complaint. The motion was denied and an exception was duly taken which is urged on the appeal as a ground for reversal. The only allegations of the complaint tending to charge the defendant with negligence are that the plaintiff was struck and injured in the public street by the
Error is also predicated upon the conduct of the trial court which it is claimed seriously prejudiced the defense. The evidence presented close questions of fact with respect to the plaintiff’s freedom from contributory negligence and negligence on the part of the defendant. The evidence on the part of the plaintiff tends to show that as she reached the corner of One Hundred and Twenty-fifth street and Park avenue fire engines went easterly on that street; -that she stopped at the southerly curb of One Hundred and Twenty-fifth street; that after traffic started again, following the passing of the fire engines, she awaited her turn to cross the street, and observed the defendant’s automobile standing in the carriageway about ten feet to her left; that a wagon pulled out from behind the defendant’s automobile and passed easterly; that she then started to cross the street, and on taking two or three steps the right front wheel of the automobile, which had started without any warning, struck her left side, and knocked her down. The testimony of the plaintiff was substantially cor
Clarke. P. J., Scott, Smith and Page, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.