p. 341Thomas E. Kane, Resp’t, v. The City of Troy, App’lt.(Supreme Court, General Term, Third Department,Headnote
1. Negligence—Municipal corporation—Care op street—When ques•tion OP PACT.The plaintiff was driving through one of the streets of the city. In drawing up to the sidewalk for the purpose of alighting the sleigh ran over a pile of rubbish and was upset. The plaintiff was thrown out and injured. This action was brought to recover damages for the injury. There was a conflict of evidence as to the size of the pile of rubbish and the length of time it had been in the street. Held, that it was a question for the jury.
2. Same—Evidence—Admissibility.
It was proper to show that the plaintiff when taken out in a carriage, some weeks after the injury, complained of pain.
Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury rendered at the Rensselaer county circuit and from an order denying the defendant’s motion to set aside the verdict and for a new trial upon the judge’s minutes.
R. A. Parmenter, for app’lt; E. L. Fursman, for resp’t.
The plaintiff was driving a sleigh through one of the'streets of the city. In drawing up towards the sidewalk for the purpose of alighting, the sleigh ran over a pile of rubbish and was upset. The plaintiff was thrown out and injured. This action is to recover damages for the injury.
■We have examined the evidence. The case was plainly one for the jury. It seems to have been fairly tried and the verdict is. not excessive. We cannot say that the jury were not justified by the evidence in finding the city negligent in leaving the pile of rubbish in the street. If there was a conflict of evidence in that respect the question was for their decision. There was no error in excluding the
p. 342question on plaintiff’s cross-examination whether his wife had commenced suit against the city. She had not then been a witness. When she was afterwards put on the stand the question was asked her and was answered. There was no error in excluding the question whether plaintiff as soon as he got hurt did not go to work to commence a law suit against defendant. What the plaintiff did about commencing an action might have been and was proved. It was proper to show that the plaintiff when taken out in a carriage some weeks after the injury complained of pain. Such evidence has been frequently admitted. Of course it may be feigned. So may expressions of the face and the like. Yet they are admissible.
Hagenlocher v.
C. I. and B. R. R. Co., 99 N. Y., 136 .
We do not see that any error was committed in receiving a city ordinance in evidence. These were followed up by the resolution passed subsequently to the new charter which imposed the duties on a street superintendent. Nothing was said in the charge as to any duty on the part of the police. The charge was put on the grounds of the duty of the city to exercise reasonable diligence in looking after its streets and seeing that they are in safe condition.
. The judgment and order are affirmed, with costs.