Perry v. Village of Potsdam — 106 A.D. 297

Majority

p. 297

Gertrude Perry, Respondent, v. Village of Potsdam, Appellant.

Headnote

What errors are renewable on an appeal from a judgment — effect of not moving foi' the direction of a verdict —proper chai'ge, in an action to recover for an injury on a village street, as to another person having been injured thereon.

Upon an appeal from a judgment entered upon the verdict of a jury, the appellant can only complain of errors which are pointed out by objections and exceptions to the rulings made.

Where, upon such an appeal, it appears that the appellant made no motion at the close of the case for the direction of a verdict, he cannot be heard to claim that the case should not have been submitted to the jury.

When, in an action brought to recover damages for personal injuries, sustained by the plaintiff in consequence of falling upon a defective sidewalk in the defendant village, a witness testified that shortly before the accident, she fell upon the same sidewalk Within a very short distance from where the plaintiff fell, if not at the precise point, it is not improper for the court to submit such evidence to the jury under instructions to give no effect thereto unless they find that the Witness fell at the same place at which the plaintiff did.

Appeal by the defendant, the Village of Potsdam, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 9th day of January, 1905, upon the verdict of a jury for $700, rendered after a trial at the St. Lawrence Trial Term.

The action is brought to recover damages for an injury which the plaintiff sustained through a walk claimed to have been defective in the defendant village. The defendant’s trustees were claimed to have been negligent in allowing the walk' to become out of repair. No actual notice was shown of the Condition of the walk prior to the accident, but the want of repair for a considerable time is shown to have existed. ■ The plaintiff recovered a verdict of $700. A motion for a new trial was made pursuant to section 999 of the Code of Civil Procedure and denied. No order was entered upon this denial of defendant’s motion, and the appeal here is simply from the judgment.

A. X. Parker, for the appellant.

George A. Adams and Ledyard P. Hale, for the respondent.

Upon an appeal from a judgment the appellant can only complain of errors which are pointed out by objection and exception to the ruling made. (Ten Eyck v. Witbeck, 55 App. Div. 168 ; Allen v. Corn Exchange Bank, 181 N. Y. 282 .) In the case of McGrath v. Home Insurance Company ( 88 App. Div. 153 ) and also in the case of Shotwell v. Dixson ( 163 N. Y. 43 ) the appeal to the Appellate Division ivas both from the judgment and from an order denying a motion for a new trial. In the McGrath case the opinion, so far as it indicates that a review may be had of errors to which exceptions were not taken upon an appeal from a judgment alone, is disapproved.

The defendant having, made no motion at the end of the case for a directed verdict cannot be heard now, upon this appeal from the judgment, to claim that there was. no evidence to submit to the' jury. (Hopkins v. Clark, 158 N. Y. 299 .)

■The appellant’s sole reliance then for the reversal of this judgment must be upon exceptions taken to the reception of evidence. Two or three of those exceptions defendant’s counsel has called to our attention, to one of which we will refér. Evidence was offered by a witness, Willis, to the effect that she tripped and fell shortly before this accident upon a loose plank in this same walk near the northwest corner of the Besaw house. This evidence of the witness Willis was objected to on the ground that it appeared to be at a different place from where the plaintiff fell. An examination of the evidence, however, discloses that it is not entirely clear where plaintiff fell. Where witness fell was within a very short distance from where the plaintiff fell; if not at the precise point, and the jury were instructed by the court to give no effect to the evidence unless they found that the witness fell at the place where the plaintiff was injured. This exception presents no error which calls for a reversal of this judgment. We have examined the other exceptions argued by appellant’s counsel in his brief and find no error which calls for a reversal of the conclusion reached at Trial Term.

The judgment should, therefore, be affirmed," with costs.

Judgment unanimously affirmed, with costs.

Cases cited

Shotwell v. Dixon 163 N. Y. 43 N.Y. 1900-05-01 p. 297
Hopkins v. Clark 158 N. Y. 299 N.Y. 1899-02-28 p. 297