
    STROM v. AMERICAN DIST. STEAM CO.
    (Supreme Court, Special Term, Niagara County.
    February 9, 1914.)
    Damages (§ 206*)—Physical Examination—Actions fob Negligence. Unless the moving papers disclose circumstances sufficient to change the general rule, plaintiff’s examination before trial, in an action for negligence, should not be ordered, the facts relied on to show defendant’s negligence being so inextricably interwoven with plaintiff’s own conduct that the examination of plaintiff to establish the defense of contributory negligence would amount to a preliminary cross-examination to obtain plaintiff’s case in advance; and Labor Law (Consol. Laws, c. 31) § 202a, as added by Laws 1910, c. 352, § 2, providing that, on the' trial of any action by an employs to recover damages for negligence arising out of and in the course of the employment, contributory negligence shall be a defense to be pleaded and proved by defendant, does not change the rule, the purpose of that section being to change the rules for the advantage of the employe, who was at a disadvantage in the matter of securing evidence and not to give the employer a greater advantage than he already had.
    [Ed. Note.—For other cases, see Damages, Cent. Dig. § 531; Dec. Dig. § 206.*]
    Action by Gustave A. Strom against the American District Steam Company. On motion to modify an order for the examination of plaintiff before trial. Order modified.
    George D. Judson, of Lockport, for the motion.
    E. E. Franchot, of Niagara Falls, opposed.
   POUND, J.

This is an employé’s action brought to recover damages for personal injuries alleged to have been sustained by defendant’s negligence.

Plaintiff moves to modify an order for his examination before trial as to the circumstances of the accident and his previous training and experience in the kind of work he was doing when injured, as well as to the character and extent of his injuries, by limiting the scope of the examination to the latter inquiry only.

Justice Ingraham, writing in Goldmark v. U. S. Electro-Galvanizing Co., 111 App. Div. 526, at page 529, 97 N. Y. Supp. 1078, at page 1080, says:

“Where an Issue of fact is presented to be determined upon the trial of the action, and where it appears that a party to the action has knowledge of facts which are material in the determination of that issue, either party to the action, under these provisions of the Code, is entitled to examine such a party and have his deposition taken for use at the trial.”

Presumably every plaintiff in a negligence action, seeking to recover for his own personal injuries, “has knowledge of facts which are material to the determination of the issue,” but Justice Ingraham further says that the right is subject to abuse, and it is the duty of the court to prevent abuse of its processes. The right thus broadly stated is subject to certain well-defined limitations.

Thus in Wood v. Hoffman Co., 121 App. Div. 636, 106 N. Y. Supp. 308, it is held that, in ordinary negligence actions, a defendant should not be permitted to examine the plaintiff generally before trial. The reason given is that the probability is so great that plaintiff’s testimony would fasten liability upon defendant as to negative any allegation of the defendant that he intended to use the testimony or that it was necessary for him to have it. Circumstances may exist, as Houghton, J., in the opinion, supra, suggests, which tend to negative this probability. Such circumstances should appear in the papers on which the order for examination is granted. The moving papers herein suggest no probability, but only a possibility, that plaintiff’s testimony will establish his contributory negligence.

It is urged that, as contributory negligence is now an affirmative defense in employers’ liability cases (chapter 352, L. 1910, '§ 2; Labor Law, § 202a), defendant is entitled to an examination of plaintiff to establish such defense, as plaintiffs have heretofore been entitled to examine defendants before trial to establish their cause of action (Gold-mark Case, supra). Without indicating whether or not in this action, based on an accident occurring in Pennsylvania, contributory negligence is an affirmative defense to be pleaded and proved by defendant, it seems that the amendment to the Labor Law above indicated does not materially enlarge defendant’s rights in this regard. In the very recent case of Griffin v. Cunard Steamship Co., 159 App. Div. 453, 144 N. Y. Supp. 517, the court (First Department, December 5, 1913), denying plaintiff’s application for a bill of particulars of such affirmative defense, says:

“Upon considerations of sound public policy, we have not allowed general examinations before trial in negligence cases. Wood v. Hoffman Co., 121 App. Div. 636 [106 N. Y. Supp. 308], It seems apparent that, if an order should require the defendant to give the particulars of the claimed contributory negligence, the court must be prepared to grant an application for an order for plaintiff’s examination before trial to enable defendant to comply with the order for particulars. We are unwilling to embark on this course of procedure.”

On the same day, the Appellate Division, Second Department, in Havholm v. Whale Creek Iron Works, 144 N. Y. Supp. 833, held, in direct conflict with the First Department, that a bill of particulars of the defense of contributory negligence, in an employé’s action, may be required of defendant.

If such a bill of particulars is required, an order for the general examination of plaintiff before trial would probably follow, but otherwise the rule is that, upon considerations of public policy, general examinations of plaintiff before trial are not allowed in negligence cases, and defendant must establish some exception to the rule in order to be entitled thereto. This rule seems to be in accordance with sound principles of justice.

If, prior to the trial, defendant should be compelled to submit to an examination to enable plaintiff to establish his cause of action, it might, at first glance, seem to follow that plaintiff should likewise be compelled to submit-to an examination to enable defendant to establish the defense of contributory negligence, but the facts relied upon to show defendant’s negligence are so inextricably interwoven with plaintiff’s own conduct at the time of the injury as ordinarily, from the nature of the case, to resolve the examination of plaintiff into a preliminary cross-examination to obtain his own case in advance, which is not the purpose of an examination before trial. McClarty v. Giroux, 142 App. Div. 750, 127 N. Y. Supp. 724.

The purpose of the amendment to the Labor Law (section 202a) was to shift the burden of proof of contributory negligence to the defendant (see First Report to the Legislature of the State of New York of the Commission on Employers’ Liability, March 19, 1910, p. 62), and the reason there given for the change is that the employer is at a great advantage in the matter of securing evidence. “As a practical matter, it is in these cases,” the report states, “extremely difficult for the employé to find the necessary evidence of negligence, even when negligence exists.” The Legislature had in mind a change in the rules for the advantage of the employé. To allow general examination of the plaintiff before trial would give the employer a greater advantage in the matter of securing evidence than he had before the amendment was adopted.

Defendant is entitled to examine plaintiff as to the nature and extent of his injuries and to that extent only. So ordered.  