I have grave doubt as to the propriety of allowing a bill of particulars of plaintiff’s or plaintiff’s decedent’s contributory *684negligence in any case. It seems to me that defendant is entitled to take advantage of the evidence as produced upon the trial and that it might work grave injustice if defendant should be precluded from so doing through having failed to anticipate such evidence and hence omitted to particularize in his bill. As this court said in the Griffin case, “ The defense of contributory negligence in its very nature precludes the necessity for particularization.” But rules of practice are not cast iron in their nature and under the peculiar circumstances of this case I am willing to concur in the affirmance.
Order affirmed, with ten dollars costs and disbursements.