Hillesum v. Mayor — 4 N.Y.S. 806

Majority

p. 806

Hillesum v. Mayor, etc., of the City of New York.

(Superior Court of New York, City, General Term.

March 5, 1889.)

Headnote

1. Evidence—Admissibility—Indefiniteness.

In an action tor damages for injuries caused by falling on a sidewalk alleged to be defective, a question put to a witness, “Do you know anybody that fell over that?” was properly excluded, in that it did not show whether the witness was required to speak of his knowledge of any fall, or, more than of his knowledge, of a person who he had heard had fallen.

8. Same.

A witness was asked: “Don’t you know as a fact that this sidewalk was fixed in March, 1887?” Meld, that the question was objectionable, as it did not appear to

p. 807

refer to a repairing of the defect alleged by plaintiff, and therefore did not tend to show what was the condition of the sidewalk at the time of the accident, in February, 1887.

3. Same—Answer not Responsive.

Plaintiff’s husband was asked: “Did the plaintiff have people by whom she had been engaged to nurse? ” He answered: “She had about five, and she could not attend to them. ” Held, that the latter part of the sentence was properly stricken out as not responsive.

4. Same—Res Gestas—Complaints.

A physician, who had testified that the accident would have an effect upon plaintiff’s nervous system, was asked: “And do you think it affected that? ” The answer was: “She is complaining of that now.” Held, that the answer was properly stricken out as not responsive, and also because complaints made by plaintiff might be inadmissible, at least if not made to the physician for his professional guidance, and only overheard by him.

5. Witness—Credibility.

The owners of property abutting the street where the accident occurred testified on behalf of the defendant city. The evidence showed that the accident was caused by plaintiff’s stepping from a part of the sidewalk which was several inches higher than the adjoining part down to the lower level, but it did not appear that either, or, if one of the owners, which one, had the right or lawful level in front of his property. Held, that the court properly refused to charge, for the purpose of indicating the interest the witnesses might be supposed to have in defeating the action, that “the defendant has a right of action over against the owner of the property in front of which the accident occurred for the reimbursement of any verdict rendered against it, and which it may be called upon to pay. ”

6. Same. "

A witness who was in the employ of a witness who had testified for defendant was asked by plaintiff, “Has he, Mahoney, told you, and don’t you know as a matter of fact, that he would have to pay the city any damage which the city might sustain by reason of this case? ” Held, that the question was properly excluded, inter alla, because it asked the witness to state the necessary consequences of a future or conditional state of affairs.

Appeal from special term.

Action by Sophie Hillesum to recover damages for personal injuries caused by falling on a sidewalk in defendant city, alleged to have been defective. There was a verdict for defendant, but the court granted plaintiff’s motion for a new trial, and defendant appeals.

Argued before Sedgwick, C. J., and Freedman and Truax, JJ.

Henry B. Twombly, for appellant. M. L. Marks, for respondent.

The action was for damages from the plaintiff’s falling, in consequence of a defect in the sidewalk of a street, which the complaint alleged was defective through defendant’s negligence. The jury found for the defendant. The new trial was granted upon the exceptions taken on the trial by the plaintiff. The case does not particularize the exceptions which were sustained by the court. It is necessary to examine all the exceptions on which the respondent relies. The question, “Do you know anybody that fell over that?” was rightly excluded on the trial. It referred to the alleged defect in the sidewalk. The question had such a form that it was not certain that the witness was required to speak of his knowledge of any fall, or, more than of his knowledge, of a person who he had heard had fallen. The witness immediately after this question was allowed to testify that he had seen his wife fall over the defect. A physician had testified that the accident would have an effect upon the nervous system of the plaintiff. He was then asked: “And do you think it affected that?” The witness not answering responsively said: “She is complaining of that now.” This was properly stricken out both because it was not responsive, and because complaints of the plaintiff might be inadmissible, at least if not made to the physician for his professional guidance, and only overheard by him. Roche v. Railroad Co., 105 N. Y. 299 , 11 N. E. Rep. 630 . Another question was properly excluded for the reason that its form was leading. On the trial the plaintiff assumed that a witness named Mahoney would be liable to the present defendants in case there should be a

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recovery against them, and that such liability might affect the credibility of Mahoney, who had testified in behalf of the defendants as to the condition of the sidewalks. Another witness was called by defendants. He was and had been in the employment of Mahoney. He was asked: “ Has he, Mahoney, told you, and don’t you know as matter of fact, that he would have to pay the city any damage which the city might sustain by reason of this ease?” The court was correct in excluding the question. Had the question not been objectionable in itself, it was within the discretion of the court to exclude it, as the witness had said, immediately before, that Mahoney had told him nothing about his liability for the condition of the sidewalk. It was objectionable in the part that asked the witness to state the necessary consequences of a future or conditional state of affairs. Mahoney, as a witness, was asked: “Don’t you know as a fact that this sidewalk was fixed in March, 1887?” The accident had happened in February, 1887. This called for a categorical answer which, when given, might have been left, without any further inquiry as to what made the “fixing” of the question, to produce a confusion in the minds of the jury. The question was objectionable, as it did not appear to refer to a repairing of the defect alleged by the plaintiff, and therefore it did not tend to show what was the physical condition of the sidewalk at the time of the accident. The plaintiff’s husband was asked: “Did the plaintiff have people by whom she had béen engaged to nurse?” He answered she had about five, and she could not attend to them. The last of the answer was properly stricken out as irresponsive.

The charge of the court was in accordance with the law. The plaintiff did not prove that the accident had put her to any personal expense, nor did she prove any facts upon which the jury might assess damages for any loss of business as a nurse. I think it is probable that the court, in granting a new trial, considered that there might have been error in refusing to charge one request of plaintiff. It was: “ The defendant has a right of action over against the owner of the property in front of which the accident occurred for the reimbursement of any verdict rendered against it, and which it may be called upon to pay.” A particular examination of the testimony shows that the plaintiff was not entitled to such a charge, even if it be assumed, although not held, that an owner of a house is responsible for the consequences of a defect in the sidewalk in front of his house, which is not a nuisance created by him, or unlawfully maintained by him. The case showed that the testimony of one of two witnesses only could have been affected by the existence of the liability alluded to in the request. These witnesses were the respective owners of Hos. 107 and 109 Sheriff street. The sidewalk in front of these houses was wholly or partly paved with flag-stone. The case, as made by the. plaintiff, was that as she was walking along the flagging of Ho. 109, and had reached the line where it ended, she stepped upon the flagging*)! the sidewalk in front of Ho. 107. This latter sidewalk was from three to seven inches lower than the sidewalk of Ho. 109. The plaintiff testified: “I was walking along, and stepped from a higher stone to a lower stone, and fell as I made the step. I did not see the stone was lower than the other.” The witness most favorable to plaintiff testified that the plaintiff fell in front of 107 and 109. The sidewalk in front of 107 was about three or four inches lower than the sidewalk of 109. There was a step between the two stones, never filled up. On this and other testimony the j ury could not have found that there was any other cause of the accident than the plaintiff’s stepping from the higher level of one sidewalk to the lower level of the other, she being unaware that there was any difference in the levels. There was no testimony to show that either, or, if one of the owners, which one, had the right or lawful level in front of his house. Even if it could be said that one or the other must have been the responsible party, the announcements of that to the jury could not have been used by them to estimate the credibility of either witness in particular. I am therefore of

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opinion that the motion for a new trial should have, been denied. Order reversed, with costs, with leave to defendant to enter judgment upon the verdict. All concur.

Cases cited

People ex rel. Morgenthau v. Cady 105 N. Y. 299 N.Y. 1887-04-19 p. 807