Citations
- 239 A.D. 165
Full opinion text
Merrell, J.
Plaintiff brought this action to recover for personal injuries which she alleges she suffered through the negligence of the defendant in operating and maintaining an amusement device at Coney Island, known as the “ Whip.” Said device consisted of a series of small tub-like cars attached to a cable and propelled around a platform so that the cars were caused to move in an erratic way, furnishing excitement and thrill to those occupying the cars. A sharp question of fact was presented at the trial as to the manner in which the accident which befell the plaintiff occurred. The plaintiff testified that, as she was standing on the platform and about to enter one of the tub-like cars, the cars were started, and that one of them struck her and threw her down, causing her the injuries for which she brought the action. The testimony of the defendant’s witnesses was to the effect that the plaintiff was injured by slipping upon a greasy cable upon which she stepped in disobedience to the warnings of defendant’s employees operating the device. The verdict of the jury resolved the question of fact in favor of the plaintiff.
The defendant claims that the court erred in permitting the plaintiff to give evidence at variance with the bill of particulars which the plaintiff served upon the defendant in response to the latter’s demand, and that the plaintiff’s testimony did not tend to prove the alleged negligence specified in the plaintiff’s bill of particulars; that the plaintiff in her bill of particulars expressly waived the claim of negligence to which she testified at the trial and upon which a recovery was had. In her complaint the plaintiff alleged that, while lawfully on the premises where the defendant operated this amusement device, and while carefully and prudently walking in said premises, she was caused to fall and seriously injure herself, and that the accident and injuries were caused solely and wholly by the negligence of the defendant in that it failed to keep the said floor clean and in proper repair and free from grease and oil and other lubricant materials, and in. that the defendant did not provide and maintain proper protection in and about the said premises and to keep the said premises under protection at the time of the accident, and causing the said small cars of the said amusement known as the “ Whip ” to Start running before the said plaintiff had an opportunity to board the said car, The defendant moved for a bill of particulars requiring the plaintiff to state: “ Specifically what are the acts of negligence which it is alleged resulted in the injuries to plaintiff as set forth in the complaint. * * *
“ Whether or not it will be claimed at the time of the alleged accident the cars and more particularly the car in [sic] which the plaintiff claims to have been boarding was in motion or in a stationary position.
“ In what manner and to what extent or degree it will be claimed the defendant failed to keep the said floor clean and in proper repair; in what manner and to what extent or degree it will be claimed it failed to keep the floor free from grease, oil and from lubricant materials and in what manner and to what extent or degree it will be Claimed it failed to provide and maintain proper protection in and about the specific part of the premises at which the plaintiff will claim she was located at the time of the alleged accident.
“ In what manner, to what extent or degree it will be claimed the defendant caused the cars of the specific device mentioned to start running before the plaintiff had an opportunity to board on the certain specific car of the said device and the specific number of and the exact position of the said specific car the plaintiff was about to board in relation to the train of cars with which the said specific car was coupled as a unit.”
On May 14, 1930, plaintiff verified her bill of particulars and served the same upon the attorneys for defendant. In response to the defendant’s demand as to the specific negligence upon which the plaintiff sought to recover, the plaintiff made the following specifications in her bill of particulars: “ That the defendant was negligent in that it failed to maintain the premises wherein the plaintiff fell free and clear from dirt, grease and oil and all encumbrances and that it failed to provide proper passage to the cars attached to the ‘ Whip,’ and faffed and neglected to have proper and careful attendants in the operation and maintenance of the said cars known as the ‘ Whip,’
“ The plaintiff claims that she fell over a large quantity of dirt and oil and grease and that the plaintiff fell while in the act of boarding one of the cars on the 15th Street side of the Whip,.’
“ That the plaintiff will not claim that she had partially boarded any of the cars which were part of the ‘ Whip.’