
    Mary Sedwards, Respondent, v. The Long Island Railroad Company, Appellant.
    First Department,
    March 7, 1913.
    Railroad—: negligence—injury to passenger from cqllision—evidence — time of accident.
    Where in an action for personal injuries alleged to have been sustained by the plaintiff in consequence of a collision between a train on which she was riding as a passenger and another train, the allegations of the complaint and the statement in the bill of particulars and the testimony of the plaintiff are all definite and show that the accident occurred on a certain day, she can only recover for an accident occurring on said day.
    Evidence examined, and held, that a verdict for the plaintiff, after a charge by the court that the plaintiff shall not be confined to the precise time alleged, should be reversed.
    Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1912, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 3d day of July, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward Kelly [Matthew J. Keany with him on the brief], for the appellant.
    
      Morris E. Gossett, for the respondent.
   Laughlin, J.:

This is an action for personal injuries alleged to have been sustained by the plaintiff in consequence of a collision between a train on which she was riding as a passenger and another train at Bay Shore, Long Island, on the 21st day of June, 1907.

The plaintiff’s case with respect to the time and the circumstances of the collision and the injuries rests on her uncorroborated testimony, which, as we view the evidence, is controverted in all respects and is to some extent, at least, improbable. Through an employment agency conducted by one Fisher the plaintiff obtained a position as a laundress at Roe’s hotel at Patchogue, and according to the allegations of her complaint, and of her bill of particulars, and to her testimony given on the trial she boarded a train on the defendant’s railroad at Long Island City at about one o’clock in the afternoon on the 21st day of June, 1907, for Patchogue to take up her new employment, and at about two-thirty-two P. M., when the train was near the station at Bay Shore, there was a collision between it and another train and she was injured. She testified that the engine on her train and the car in ■ which she was riding were badly smashed up by the collision and that the seat hit her in the back of the head, and she was thrown onto the floor of the car where she remained unconscious two or three hours, when she awoke and found that she was alone in the car; that she arose and walked out onto the station platform where there were quite a number of people who had been injured and she then saw that the two trains had crashed together, but that she saw no employee of the defendant; that a Mrs. Smith, who lived at Bay Shore, was on the platform and invited plaintiff to her house; that she remained at Mrs. Smith’s until about seven o’clock in the evening, when she returned to the station and purchased a ticket from there to Patchogue where she went, and, after seeing a doctor, entered upon her duties and worked there at laundry work and in the kitchen for a period of about one year and seven months, suffering day and night from severe pains in her head, and consulting a physician daily for a year; that after the expiration of said employment she returned to New York and consulted a physician, and has not been able to work since. The plaintiff made no complaint to the company nor to any officer or agent thereof until the 31st day of May, 1909, or nearly two years after the accident, when she mailed a letter addressed to the company informing it that she was “in a accident on the Long Island Rail Road the 23rd of June, 1907; ” but in the letter she does not say where or how the accident occurred, or even complain of injuries. On the trial she testified that if she wrote that letter she made a mistake with respect to the date of the accident, and that it occurred on the twenty-first of June.

The employment agent testified that his records showed that he sent her to the position on or about the 1st of July, 1907; but he further testified that that was the day on which she was to and did pay him his fee for obtaining the position for her, and that it might have been when she received her first week’s wages. An attorney who resided at Bay Shore testified that he witnessed a collision at that station between an outbound passenger train and an inbound freight train during the latter part of June or the fore part of July, 1907.

The attorney for the plaintiff endeavored to obtain the testimony of Mrs. Smith, whom his client says she visited on a subsequent occasion when she made a special journey to Bay Shore for that purpose, and with that end in view he interviewed two women residing at Bay Shore bearing that name, but neither of them had any recollection of the incident described by the plaintiff. This is the only evidence produced by the plaintiff bearing on the time the accident occurred, and she produced no evidence to corroborate her claim with respect to injuries.

The defendant showed that in the month of June, 1907, no passenger train left Long Island City for Patchogue at one o’clock, and that the last one before that hour was at eleven-four a. m., and the next thereafter was at two-two P. 11., and that these trains were on time on the twenty-first of June. It further showed by the conductor of the afternoon train that it had no collision. The defendant also showed that it had no notice or record of an accident or collision at Bay Shore on either the twenty-first or twenty-third of June, and that the presence of one of its wrecking gangs would have been required if a collision such as described by the plaintiff occurred; but that no wrecking gang was called to Bay Shore on either the twenty-first or twenty-third of June.

The court declined to instruct the jury at the request of the defendant that “unless they find the collision occurred on June 21st, 1907, the plaintiff cannot recover,” and counsel for the defendant duly excepted, and, thereupon, the court further instructed the jury that although the plaintiff was not confined to the precise time alleged she was confined to a reasonable degree of certainty with respect to time, and said to the jury “You may not go beyond reasonable limits in giving her latitude to go beyond the date fixed. You could not find for her if you found the accident happened a year out of the date she states, or for six months or three months; it must be reasonably within the time stated by her,” and to these additional instructions an exception was duly taken.

The instructions thus given correctly and clearly stated the general rules applicable to such questions; but in the particular circumstances of the case at bar, where the allegations of the complaint and the statement in the bill of particulars and the testimony of the plaintiff are all definite and show that the accident occurred on the twenty-first of June,—we are of opinion that the right of the plaintiff to recover should have been confined to an accident occurring on that day. If the plaintiff had not stated the date of the accident with reasonable certainty the defendant would have had a right to require that the complaint be made more definite or that the date be specified with reasonable certainty in the bill of particulars, to the end that it might not be required to prepare to defend a charge of a collision occurring with respect to any of its passenger trains between the points in question for a considerable period of time. On the complaint and bill of particulars, in which a precise date was definitely given, the defendant was not obliged to prepare to defend itself against a charge of a collision on some prior or subsequent day, and particularly so in view of the fact that there is no evidence that the date was erroneously given in the complaint and bill of particulars.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.  