This action is brought to recover damages occasioned, as alleged, by defendant’s negligence. The plaintiff is a car-driver upon defendant’s road. The complaint contains an exceedingly general averment of negligence, in that the car he was driving was “out of repair, and in an unsafe and dangerous condition.” The complaint subsequently particularizes the defect, as to state that “on the plaintiff’s information and belief, that the dangerous and unsafe condition of said car was caused by the running-gear of said car being defectively constructed and out of repair; the ratchet-wheel and dog being insufficient and out of repair, the brake-shore and brake-chain not properly adjusted and out of repair, the platform of said car being out of repair, and said car not being supplied with a brake-guard, brake-rail, or dashboard,—in consequence of which dangerous and unsafe condition the said car could not be safely operated. ” It is uncertain whether the specific defects named in the running-gear and platform are all the defects relied on by plaintiff to make out his cause of action. The defendants, to prepare for trial, should know where the negligence consists which is to be the ground of recovery against the defendants. The order, therefore, is just and reasonable. If the plaintiff has in view the existence of defects which he could prove, under general allegations of negligence, other than those he has named in the complaint, he should furnish a specification of them to the defendant. If he has no such proof, the order does not touch him, for it is only in case of default, “except those set forth in the amended complaint,” that he is to give a bill of particulars. The order should therefore be affirmed, with costs and disbursements.
Pratt, J., concurs.