Bowker v. Donnell
District Court, S.D. New York
At Raw. Action by Helen Reynolds Bowker against Robert B. Donnell. Defendant moves for a bill of particulars. This is an action for personal injuries caused by the alleged negligence of defendant. The answer sets up as a defense that the injuries were caused in whole or in part by the negligence of the plaintiff. Plaintiff moves for a bill of particulars, specifying each and every act of negligence or want of care of the plaintiff.
1Opinion of the Court
DACOMBR, Circuit Judge.
[1,2] Plaintiff relies on Szymanski v. Contact Process Co., 82 Misc. Rep. 46, 143 N. Y. Supp. 604. In that case the statute under which the action was brought expressly provided that:
‘•Contributory negligence of the injured person shall be a defense, to be so pleaded and. prmed by the defendant.”
This action is not brought under that statute, and although, contrary to the rule in the state courts (of New York), contributory negligence is in the federal courts a defense, the burden of establishing which is on the defendant, he need not plead such defense, but may avail of…
2Cases cited15 opinions
- Inland & Seaboard Coasting Co. v. TolsonSupreme Court of the United States · 1891
- Washington & Georgetown Railroad v. Harmon's AdministratorSupreme Court of the United States · 1893
- Texas & Pacific Railway Co. v. VolkSupreme Court of the United States · 1894
- Chicago G. W. Ry. Co. v. PriceCourt of Appeals for the Eighth Circuit · 1899
- Havholm v. Whale Creek Iron WorksAppellate Division of the Supreme Court of the State of New York · 1913
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3Cited by1 opinion
- Gray v. Pennsylvania R.District Court, S.D. New York · 1946