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Teasdale v. Malone Village

17 A.D. 185 Court N.Y. App. Div. English

Delivered by Putnam, J.:

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p. 185
Sarah Teasdale, Appellant, v. Malone Village, Respondent.

Headnote

Negligence—proof as to the defective condition of a sidewalk upon the day after an accident, is competent.
In an action brought against a village to recover damages for personal injuries, ' caused by the alleged defective condition of a board sidewalk upon a village • street, evidence showing the condition .of the sidewalk on the day after the accident, at the point where the accident- occurred, is competent.
Appeal by the plaintiff, Sarah Teasdale^ from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 29th day of May, 1896, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.
J. W. Webb) for the appellant.
John P. Mellas, for the respondent.

The plaintiff brought this action to recover damages for injuries alleged to have been sustained in consequence of the defective condition of a board sidewalk-in one of the streets, of the village of Malone. She claimed that the planks on said walk at the place

p. 186
where- she was injured were loose, unnailed and rotten and put on rotten stringers.

On the trial she called one Joseph Teas'dale as a witness, and after showing that she had pointed out the place where she was injured,, sought to prove by him- the condition of the walk at the locality in question on the day after the • accident, and that the plank and stringers were then rotten. This testimony, on the objection of. the defendant, was excluded by the trial court on the ground that it was not proper to show the condition of the walk subsequent, to .the' -accident; and the plaintiff excepted.

We think that the court erred in sustaining the objection to the evidence thus offered. The plaintiff could not properly have shown the condition of the walk a considerable period subsequent to. the-accident. (Per kins v. City of Poughkeepsie, 83 Hun, 76 .) But testimony tending to show that, on the next day. after the plaintiff received her injury, the plank ■ and stringers at the place in question were rotten, was competent. (Woolsey v. Trustees of Ellenville, 84 Hun, 236 ; Strauss v. Newburgh Electric R. Co., 6 App. Div. 264 .)

The plaintiff sought to show the decayed condition of the board walk at the .place- where she fell. “ There is a legal presumption of continuance.” (Wilkins v. Earle, 44 N. Y. 172 , 192.)

The testimony offered to show that the plank and stringers of the walk were rotten the day after the injury wonl-d also have proved or tended to prove its condition at the time of the accident.

The authorities cited by. the learned counsel for respondent are not parallel to this case' They áre to the effect that in such cases as this, the acts of a defendant subsequent to the injury complained of to remedy the defect which caused an accident, cannot be shown. (See Corcoran v. Village of Peekskill, 108 N. Y. 151 .)

As the exclusion of this evidence may have affected the verdict, the judgment should be reversed and a new trial' granted, costs to abide the event. .

All concurred;

Judgment and order reversed, and a .new trial granted, costs to abide the event.

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