Haight v. City of Elmira

This action was brought to recover damages for injuries received by the plaintiff on the 1st day of February, 1895, by reason of the alleged negligence of the city of Elmira in permitting an embankment of snow and ice to remain upon the roadway of Pennsylvania avenue, one of the public streets of said city, near its junction with Franklin street. The embankment was formed by a heavy snowstorm which occurred on the 27th day of December, 1894,

The appellant urges that the court erred in denying its motion for a new trial upon the minutes, as it was not, as a matter of law, chargeable with negligence, under the facts appearing by the testimony on the trial. The principle appears to be established that while a municipal corporation may not be liable in an action for an injury re-suiting from a mere slippery condition of the sidewalks on its streets, caused by a low temperature, in consequence of which all the streets become coated with ice, where there is no ridge or accumulation of ice on a walk (Anthony v. Village of Glens Falls, 4 App. Div. 218 , 38 N. Y. Supp. 536 ; Id., 153 N. Y. 682 , 48 N. E. 1104 ), such corporation Is liable if it negligently permits an accumulation of ice and snow, in consequence of which one walking on the street receives an injury (Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459 , 11 N. E. 43 ; Keane v. Village of Waterford, 130 N. Y. 188 , 29 N. E. 130 '; Kinney v. City of Troy, 108 N. Y. 567 , 15 N. E. 728 ). There is no reason why the principle thus established in reference to sidewalks should not be ■applied where the negligence of a municipal corporation consists in allowing a dangerous accumulation of ice and snow in the roadway of its streets, in consequence of which one driving thereon is injured. Hirsch v. City of Buffalo, 21 Wkly. Dig. 312 . We do not deem it necessary to enter into a discussion of the evidence produced by the parties on the trial. We have carefully examined and considered such evidence; and we think, under the authorities above referred to, that it presented a question of fact, which the trial judge was compelled to submit to the jury, and that it permitted a finding that the accumulation of ice and snow at the place in Pennsylvania avenue where ■the plaintiff was injured had existed in substantially the same condition as on the 1st day of February, 1895, for over a month prior thereto, and that it formed a dangerous obstruction, which it was the duty of the city of Elmira to remove; that the injury to the plaintiff would not have occurred, had such obstruction not existed; that it was negligence, as charged in the complaint, for the city to permit this accumulation of snow and ice on the street for over a month before the accident; and, hence, that the trial judge was right in submitting the question of the defendant’s negligence to the jury, and denying .the motion for a new trial.

After the rendition of the verdict a motion was made by the defendant for a new trial on the ground of misconduct on the part of

The misconduct claimed on the part of members of the jury was that while the trial of the case was proceeding they visited the scene of the accident, and made an investigation, of their own accord. The affidavits of two of the jurors were produced, stating that several of the members of the jury stated that they had visited and examined the place where the accident occurred, and .that after the jury had retired for deliberation |uch jurors argued on the basis of what they had thus discovered. One of said affiants stated that during the course of the trial he personally went to the place of the accident, made an investigation, and examined the situation of the street-railroad track, walk, curbing, roadway, and other marks and fixtures of the locality. 5- One Burritt, not a member of the jury, also stated in an affidavit that, while the trial of the case was proceeding, he saw Isaac Allen, one of the jurors, with others, whom he was informed were members of the jury, at the place in question, and that said Allen and another juror were pacing off distances and measurements with their legs. It is held that the affidavit or admission of a juror cannot be received to show irregularity or misconduct on his own part or that of his fellows (Clum v. Smith, 5 Hill, 569 ; White v. Jones, 86 Hun, 58 , 34 N. Y. Supp. 208 ), although such an affidavit may be read to sustain a verdict (Moore v. Railroad Co. [Com. Pl.] 8 N. Y. Supp. 329 ). There was no competent proof, therefore, before the court below, on which he could have granted the defendant’s application, as far as it was based on the alleged misconduct of members of the jury, except the affidavit of said Burritt. But the statements in the affidavit of Burritt were denied in that of the juror Isaac Allen. The court below was authorized, as it did, to believe the statement contained in the latter affidavit, and hence to hold that there was not sufficient proof to sustain the defendant’s motion. Again, the affidavits of seven members of the jury, read by the plaintiff, tended to contradict and discredit those on which the motion was based, and to show that in deliberating upon a verdict the members of the jury considered and discussed only the evidence offered by the parties in court, and were not influenced by any inspection, if made by some of the members of the jury. Irregularity or misconduct of members of a jury is not a ground for granting a new trial, where it is to be presumed that such misconduct did not produce injury to the moving party. Moore v. Railroad Co., supra; Harrison v. Price, 22 Ind. 165 , 166; Whelchell v. State, 23 Ind. 89 -91; City of Indianapolis v. Scott, 72 Ind. 196 -205; Smith v. Thompson, 1 Cow. 221 ; Com. v. Roby, 12 Pick. 496 -516. The trial judge, we think, was justified in presuming that the misconduct of certain members of the jury, if there was any, did not injuriously affect the interests of the defendant.!^ The negligence attributed to the city, and on account of which the plaintiff claimed to recover damages, was in permitting an accumulation of snow and ice on Pennsylvania avenue. The real question on the trial was as to the height, shape, and situation of this obstruction in the street, and its distance from the railroad track. When it is claimed members of the jury examined the locality, the snow and ice had melted, and the

The newly-discovered evidence upon which the defendant moved for a new trial related to certain photographs taken by the plaintiff’s attorney of the place where the accident occurred, subsequent to the 1st day of February, 1895, and to the plaintiff’s condition before and after the trial. The rule applicable to such a motion was stated by Martin, J., in Glassford v. Lewis, 82 Hun, 46 -48, 31 N. Y. Supp. 162 , 163:

“It must appear that the evidence has been discovered since the trial; that it could not have been obtained upon the former trial by the exercise of reasonable diligence; that it was material to the issue, and goes to the merits of the casé; that it was not merely cumulative; and that its character is such that it would probably have changed the result. When these facts appear, and the court is satisfied that the ends of justice will be promoted by allowing the moving party an opportunity to present the newly-discovered evidence, the motion will be granted.”

Under those rules, the defendant failed to show a state of facts entitling it to a new trial. The attorney for the city knew of the existence of the photographs long prior to the trial, and it cannot be doubted that, had he exercised proper diligence, he could have procured their production thereat.

So as to the newly-discovered evidence relating to the condition of the plaintiff before and after she was injured. The trial occurred about two years subsequent to the accident. The complaint alleged serious and permanent injuries resulting from the negligence of the defendant in permitting a dangerous obstruction in the streets. The defendant knew that the condition of the plaintiff, both before and after the accident, was a proper subject of proof, and no satisfactory reason is given for its failure to procure and produce the alleged newly-discovered evidence on the trial.

But, had the defendant shown the exercise of proper diligence, the motion, we think, was properly denied. It was shown by several affidavits that when the photographs were taken the situation at the place of the accident had been changed. A portion of the embankment of ice and snow had been removed, and hence the pictures did not represent the place as it was on the 1st day of February, 1895. The photographs, therefore, probably were, incompetent as evidence in the case, as one of the affidavits states the defendant’s attorney claimed when he inspected them; but, if they were, they could not

The alleged newly-discovered evidence relating to the plaintiff’s condition before and after the trial could only be material on the question of the amount of damages. While the defendant read many affi-. davits to the effect that the plaintiff before the 1st day of February, 1895, was lame, crippled, and diseased, and also relating to her condition afterwards, those affidavits as to her condition before and after the accident were controverted by a larger number produced by the plaintiff on the hearing of the motion. The court below was justified in determining that if, on a new trial, the several parties whose affidavits were read (some of them tending to show that the plaintiff was diseased and crippled, and a larger number a contrary state of facts) were called as witnesses, the result as to the amount of damages would not be changed, especially as it was shown by the testimony on the trial that as a result of the accident the plaintiff suffered a fracture of the bone in the vicinity of the hip joint, causing a deformity which was irremediable and permanent, and other injuries, and the amount of the damages awarded by the jury was not excessive for the serious and permanent injuries the plaintiff concededly received. Had the defendant, therefore, shown proper diligence, we think the court below was right in determining that the alleged newly-discovered evidence would not probably, on a new trial, change the result. The judgment and order should be affirmed, with costs. All concur.