or issues it might have to meet upon trial in regard to negligence. It contends, and with justice we consider, that the allegations consist of conclusions and not of facts. Under the authorities cited in the defendant's brief, it is clear that the allegations of negligence (while not fatal to the validity of the statement of claim if not attacked preliminarily) nevertheless are so lacking in exposition of facts and particularization as to fail to meet the usual requirements of proper pleading. Conceding so much, however, it is necessary to dispose of other questions before concluding that the allegations are insufficient to put the defendant to his defense. For there are certain classes of case where evidence merely of an accident, or the sustaining of an injury, sometimes with and some times without attending circumstances, is enough to send a case to the jury; wherefore the mere averment of the accident, the injury, and the circumstances would constitute sufficient pleading in a statement of claim. Therefore, if this case falls into any one of those classifications, which are specified and discussed below, then the recital of the explosion of the dynamite cap, bare of elaboration as it is, makes out a sufficient claim. The classifications are: (a) Res ipsa loquitur, (b) Cases where the happening of an accident resulting in injury, with the attendant circumstances, are sufficient to raise an inference of negligence and cast upon the defendant the burden of establishing his freedom from fault as when the thing causing the injury is under the management of the defendant and the accident is such as does not happen if those who have the management use proper care. (c) Implied warranties. We conclude, therefore, that since the instant case does not fall within any of the three classifications denominated as (a), (b), and (c) herein, the necessity for specific averments of fact forming the basis for the general allegation of negligence cannot be dispensed with, as they would be did this case fall into any one of those classifications. Since, therefore, the plaintiff has failed to inform the defendant of the specific issue or issues which it will be required to meet upen trial, it is our opinion that the statement of claim should be more definite and that the defendant's motion should be granted. Other contentions of the defendant, however, are without merit. One of them relates to the plaintiff's failure to plead lack of contributory negligence on his part. This is not necessary. "In the federal courts the rule is that freedom from contributory negligence on the part of the plaintiff in a personal injury case need not be negatived or disproved by him"; Swett v. Givner, 5 Fed. Supp. 739, 740. See also Texas & P. R. Co. v. Volk, 151 U.S. 73, 14 S. Ct. 239, 38 L. Ed. 78. ** Defendant also contends that the general allegation as to the injuries following more specific averments, should be elaborated upon. However, the specific averments are given in great detail, and if the allegation complained of is too general, the defendant may attack it upon trial by way of objection to the admission of evidence offered under the allegation. ** See contra, however, opinion of Wham, D.J. in Francis v. Humphrey (Eastern District of Illinois, November 2, 1938), Bulletin No. 4 of November 14, 1938, in which the burden of proof on the issue of lack of contributory negligence was held to be a matter of substantive law and, therefore, governed by State rule under the doctrine of Erie R. R. Co. v. Tompkins, 304 U.S. 64. (Editor's note) Subdivision e) - Motion for More Definite Statement or For Eastern District of New York November 28, 1938 UNITED STATES OF AMERICA to the use and for the benefit of A motion to strike an answer for failure to comply with a demand for a bill of particulars will be denied on condition that the defendant supply all of the particulars of which he has knowledge. (See opinion in this case under Rule 14) |