#### Caroline Schmidtkunst, as Administratrix, etc., of Paul Schmidtkunst, Deceased, Respondent, *against*Emanuel S. Sutro *et*al., Appellants.

(Decided December 3d, 1888.)

The complaint in an action for negligently causing the death of plaintiff’s intestate, while in the employ of defendants, alleged that they allowed a step-ladder in their factory to become unsafe; that by reason thereof it gave way and precipitated him to the floor, and that from the injuries so received he died. *Held,*that a motion to have the complaint made more definite and certain, by specifying in what respect the ladder was unsafe, should be denied.

Appeal from an order of this court denying a motion to require a complaint to be made more definite and certain.

The action was brought by plaintiff as administratrix of her deceased husband, to recover damag'es for his death. The complaint alleged that the decedent, while in the employ of defendants, and in pursuance of their instructions and directions, attempted to adjust certain machinery, and in so doing got upon a step-ladder which was in defendants’ factory to be used for that purpose; that defendants had allowed such step-ladder “ to become unsafe, and insecure and dangerous, out of "order, faulty, and dangerous to life and limb; ” that “ by reason of the unsafe condition of the said step-ladder aforesaid, the same gave away, and precipitated the said” decedent to the floor, injuring him; and that in consequence of the injures so received, he died. A motion by defendants to require the complaint to be made more definite and certain “ by specifying in what respect said ladder was unsafe and not in good condition, and the defects of the same,” was denied. From the order denying the motion defendants appealed.

*H. E. Yonge,*for appellants.

*August P.*Wagener, for respondent.

*94Van Hoesen, J.

The order should be affirmed, with costs. The complaint alleges that the step-ladder was unsafe; that it gave way,, and precipitated the plaintiff’s intestate to the floor, whereby two of his ribs were broken. The meaning of -this allegation is perfectly apparent, and the difficulty that the defendants experience is, not in understanding what they are charged with, but in ascertaining, in advance of the trial, what weak spots in the ladder the plaintiff expects to point out to the jury. It is obvious, therefore, that the allegation is not indefinite or uncertain, and that the application for information as to the defects in the ladder ought not to have been made under section 546 of the Code.

If the defendants had applied for a bill of particulars, though their motion would have been made under section 531 (which is the section that applies where a party desires information as to the details of a charge that his adversary has made against him in general terms though in language so intelligible that the accusation is unmistakable), it does not follow that they would have been successful. Where a step-ladder that an employer provides for the use of his servant breaks down; where the servant is thrown to the ground thereby, and is seriously injured; where the step-ladder is in the possession of the employer, and was never seen by the. servant before he was told to go upon it; and where the servant has never seen it since the injury, it is not likely that any court would call upon the servant to specify the cause of the collapse of the ladder, under pain of losing compensation for his injuries if he did not in his bill of particulars mention the very defect that, in the opinion of the jury, caused the break down. Again there are cases to which the maxim, *res ipsa*loquitur, applies, and in such cases the plaintiff is not called on to give particulars, because the explanation of the cause of the accident is then devolved upon the defendant. It might turn out, upon a motion for a bill of particulars, that this case was one of that class.

Labbemore, Ch. J., concurred.

Order affirmed, with costs.