Palmer v. the Frank Wilcox Co.

BOOTH, J.

The action is to recover damages for personal injuries alleged to have been sustained by the plaintiff as a result of the negligence of the defendants, their servants, agents and employees, which negligence is alleged to have consisted in maintaining, operating and inviting the use of a defective and dangerous amusement device when, by the exercise of reasonable care, they could have known of its condition, and in negligently failing to warn the plaintiff of the condition of said device.

It is obvious that some of the facts necessary to support the allegations of the plaintiff must be supplied if at all by testimony emanating from the defendants and the plaintiff avers that the facts which he seeks by his motion are not within his knowledge or power. Such facts then as are within the exclusive power of the defendants to supply and which are material to the support of the plaintiff’s cause of action are proper subjects for a motion for disclosure. Some of the facts sought appear to meet the above test, but some do not. Those which in the opinion of the Court are proper consist of the interrogatories numbered respectively 9, 13, 14, 1?, 16, 17, 18 and 19.

The defendant, Morris Diamond, is therefore ordered to answer all of the aforesaid interrogatories, and the defendant, The Frank Wilcox Company, is hereby ordered to answer the last seven thereof only.