Brumberger v. Joline

BIJUR, J. This action was brought to recover for personal injuries received by plaintiff while on one of defendants’ cars. The motorman applied the brake so suddenly that his hand slipped, and his arm went through the glass of the front door, some of which fell upon plaintiff and injured him. The defendants proved that the conductor gave the motorman “three bells,” which calls for an emergency stop; but, as defendants could not find the conductor to secure his presence -at the trial, the reason for giving the signal was not shown. Under these circumstances, defendants claim that the accident is sufficiently explained on the motorman’s testimony, and that he acted as best he could when confronted with a sudden emergency, citing Wynn v. Central Park, etc., Co., 133 N. Y. 575, 30 N. E. 721, and Bittner v. Crosstown Ry. Co., 153 N. Y. 76, 46 N. E. 1044, 60 Am. St. Rep. 588. But what was held in those cases was that the company could not be charged with negligence merely because the motorman may have made an error of judgment, when confronted with an emergency. That has'no application to the case at bar, since, without further explanation of the incident, the slipping of the motorman’s hand from the brake is presumably just as negligent when the brake is put on suddenly as when it is put on slowly. But, even if we accept defendants’ plea that this negligence is in some way to' be excused by the giving of the “three bells,” they have not sustained the burden of refuting the presumption of negligence by merely showing that the conductor gave “three bells.” Having failed to show the necessity for the signal, it has left unaffected the presumption that the defendants were negligent. On the argument of this appeal, the learned counsel for the defendants, on having this point called to his attention, replied that it could npt avail the plaintiff appellant, because in his bill of particulars he had set out that it was the motorman’s act of negligence which had caused the'accident. It requires, however, no other reply to that contention than to point out, in the language of the Court of Appeals, that "the bill of particulars certainly need not state more than the plaintiff is bound to prove.” Matthews v. Hubbard, 47 N. Y. 428, 429. The effect of the bill of particulars is to limit the plaintiff to [521] proof of the facts therein set forth. It would be a strange perversion of the function of the bill' to allow it to defeat a plaintiff, who lias made out a prima facie case, according to his bill, of negligence on the part of the defendant, when he is met by the plea of the defendant that it itself had affirmatively proven its negligence, but at the hands of one of its other servants. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.