Opinion
November 27, 1961
In a negligence action to recover damages for the wrongful death of plaintiff's intestate and for his conscious pain and suffering before death, as a result of the collision between a railroad train and a motor vehicle at a railroad grade crossing (the intestate having been a passenger in such vehicle), the railroad company appeals from so much of an order of the Supreme Court, Nassau County, dated August 31, 1961, as in its fifth decretal paragraph, grants plaintiff's motion to direct it to produce at its examination before trial a copy of certain rules and regulations promulgated by it to govern the action of its employees in the safe operation of its railroad. Order, insofar as appealed from, reversed, without costs; and plaintiff's motion, insofar as it seeks the production of the said rules and regulations denied. The examination shall proceed on 20 days' written notice or on any other date mutually fixed by the parties. The rules and regulations would not be admissible in evidence ( Longacre v. Yonkers R.R. Co., 236 N.Y. 119, 125; Abady v. Pennsylvania R.R. Co., 6 A.D.2d 803; Renoud v. City of New York, 251 App. Div. 851, 251 App. Div. 868). Accordingly, their production at the examination should not have been ordered ( Bergstrom v. Ridgway Co., 138 App. Div. 178). The fact that plaintiff in his complaint has alleged the existence of the rules and regulations as well as the substance of some of them, does not affect the situation ( Lattimer v. Sun-Herald Corp., 208 App. Div. 503; O'Brien v. Syracuse Linoleum Floors, 84 N.Y.S.2d 12, 15). Ughetta, Christ, Pette and Brennan, JJ., concur; Beldock, Acting P.J., not voting.