Wolz v. Dry-Dock, East Broadway & Battery Railroad ( 1891 )

Barnard, P. J.

The complaint states that the plaintiff’s husband was killed by the negligence of defendant. A part of section 2 of the complaint was stricken out by the order appealed from. The whole section is as follows: “That the defendant so negligently and unskillfully conducted itself, in not keeping the track and switch of said road at the corner of Grand and Forsyth streets in said city in proper condition, that its cars, at many different times prior to the accident hereinafter mentioned, were thus thrown from the proper track, of which fact the defendant had knowledge.” That part of this section which avers that the defendant’s cars had been thrown from the track by a defective switch and track on previous occasions was stricken out. The pleading was proper as it stood. The fact that cars were repeatedly thrown from the track with the knowledge of defendant-was material and pertinent, in view of the fact, subsequently stated, that the accident happened at the corner of Grand and Forsyth streets, and that it was caused by the defective condition of the' track and switch as to which the averment in the .•section is made. The complaint, taken as an entirety, is that the defendant kept a bad track and-switch at the corner of Grand and Forsyth streets,—one which would not hold the cars in place, and which repeatedly failed, to defendant’s knowledge,—and that on the 8th of November, 1888, the car was ■cast against plaintiff’s husband, by this very condition of the switch and ¡track, and was killed. The former instances of failure are only addressed to the question of notice of the defect, and are not objectionable as introducing other accidents to have an effect on the one involved in this action. The order should be reversed, with $10 costs and disbursements. All concur.