Peder Pedersen, Respondent, v. Hyman Dolger, Appellant

Second Department, April, 1921. Peder Pedersen, Respondent, v. Hyman Dolger, Appellant. Motor vehicles — bill of particulars not limiting general charges of negligence — evidence sustaining verdict. Appeal by defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of May, 1920, upon the verdict of a jury for $10,000 in an action to recover damages for negligent injury, and also from an order entered in said clerk’s office on the 12th day of July, 1920, denying defendant’s motion for a new trial made upon the minutes. [MAJORITY — Per Curiam:] Per Curiam: We find no material variance between the bill of particulars and the evidence. The order for the bill of particulars, if there was an order, is not printed in the record, and the statement in paragraph 2 of the bill of particulars does not limit the general charges of negligence in the complaint. And in any ease defendant was not misled or prejudiced. The facts on both sides were fully gone into. There was evidence that plaintiff was thrown twenty feet by the impact and that defendant’s automobile traveled the twenty feet and did not stop until it stood over the plaintiff’s body. Defendant testified that his automobile could have been stopped in two or three feet. On these facts, as well as the severe injuries sustained by plaintiff, the jury could find excessive speed. Plaintiff’s witness Connaughton testified that after the accident, with the plaintiff underneath, defendant’s automobile pointed east, towards Prospect Park, which negatived defendant’s rather unusual claim that coming north on Coney Island avenue, or Prospect Park Southwest, on his way to Manhattan, and desiring to reach Fourth avenue, Brooklyn, he was endeavoring to leave Coney Island avenue, the disect road, to turn to the west into Seeley street, which did not lead to Fourth avenue. The questions of negligence and contributory negligence were clearly for the jury. The judgment and order should be affirmed, with costs. Blaekmar, P. J., Mills, Rich, Putnam and Kelly, JJ., concur. Judgment and order affirmed, with costs.