Toppin v Belfast Corporation
Jurisdiction | Ireland |
Judgment Date | 04 December 1908 |
Date | 04 December 1908 |
Docket Number | (1908. No. 8058.) |
Court | King's Bench Division (Ireland) |
Appeal.
(1908. No. 8058.)
CASES
DETERMINED BY
THE KING'S BENCH DIVISION
OF
THE HIGH COURT OF JUSTICE IN IRELAND,
AND ON APPEAL THEREFROM IN
THE COURT OF APPEAL,
AND BY
THE COURT FOR CROWN CASES RESERVED.
1909.
Practice — Contributory negligence — Inevitable accident — Particulars — G. O. XIX., Rr. 6, 7.
Where, in an action for negligence, the defendant pleads contributory negligence, the Court will not compel him to give particulars of such plea, unless the plaintiff makes out a special case for the granting of particulars.
This was an action for personal injuries to the plaintiff, caused, as he alleged, by the negligence of the defendants' servants in the management of an electric tram-car. The plaintiff alleged that when crossing a street he was knocked down and injured by the tram, which approached at a high rate of speed and without warning.
The defendants traversed the several allegations in the statement of claim, and also pleaded that the injuries arose from inevitable accident, and that there was contributory negligence on the part of the plaintiff.
The defendants having declined to comply with a notice served by the plaintiff requiring particulars of the pleas of inevitable accident and contributory negligence, the plaintiff applied to a Divisional Court of the King's Bench Division (Gibson, Kenny, Dodd, JJ.) for an order for such particulars, which was granted. The defendants thereupon furnished the plaintiff with particulars of the plea of inevitable accident, and now appealed against so much of the order as directed them to give particulars of the plea of contributory negligence.
T. Harrison, for the appellants:—
The defendants should not be compelled to give particulars of
the plea of contributory negligence, which is “a traverse of an allegation contained in the statement of claim”: Rattray v. Cork and Macroom Railway Co.(1). Martin v. M'Taggart(2) was wrongly decided. In Savage v. Kirk(3)Martin v. M'Taggart(2) was cited, but the Court refused to order particulars to be given, on the ground that no special case was made out for such an order. In O'Reilly v. M'Call(4) Palles, C.B., followed Martin v. M'Taggart(2), but without approval. The proper principle is that particulars should not be ordered to be given unless a special case is made by the plaintiff showing that without the particulars he would be taken by surprise; and that has not been done here....
To continue reading
Request your trial-
Martin v Ford
...contributory negligence of the plaintiff which has been pleaded by the defendant. So held by Murnaghan J. Toppin v. Belfast Corporation [1909] 2 I.R. 181 followed, and Atkinson v. Stewart and Partners Ltd.DNI [1954] N.I. 146 considered. Martin v. Ford. WILLIAM MARTIN Plaintiff and JOHN H. F......
-
Mahon v Celbridge Spinning Company Ltd
...negligence. This appeal should be allowed. (1) Before Haugh, Walsh and FitzGerald JJ. (2) [1965] I.R. 42. (1) 1 N.I.J.R. 208. (2) [1909] 2 I.R. 181. (3) 64 I.L.T.R (4) 65 I.L.T.R 198. (5) [1954] N.I. 146, 152. (1) [1965] I.R. 42. ...
-
Atkinson v Stewart and Partners Ltd
...he has to meet and so to save unnecessary expense and avoid allowing parties to be taken by surprise. Toppin v. Belfast Corporation [1909] 2 I.R. 181 criticised and not followed. ...