Provost v. Mayor of New York

—The charge of the learned judge who tried this case is omitted from the case on appeal. We must therefore presume that the issues were fully and' fairly presented to the jury upon the evidence. The principal contention upon this appeal is, that the plaintiff did. not establish a cause of action, and that the complaint should have been dismissed. But we think the trial judge-correctly administered the law, as it exists at present in this state, on the subject of accidents to pedestrians occasioned by slippery sidewalks. There is evidence from which1 the jury could infer that there had been a thick coating of ice for a long time where the plaintiff fell; that such coating existed in that particular place, and that other sidewalks in the neighborhood had been cleared; that said ice-coating was therefore not an incident common to all the sidewalks in the city; and furthermore that the ice in question was cleared off and the condition of the sidewalk under it greatly improved immediately after the accident. We do not say that the evidence necessarily establishes these points and that no other conclusions could be drawn from it, for there is grave contradiction and disputes as to all of them. But if the jury believed plaintiff’s witnesses, they were authorized to find the facts as above stated, and the case therefore falls within the ruling in Todd v. The City of Troy ( 61 N. Y., 506 ), and must be distinguished from Kinney v. The City of Troy ( 108 N. Y., 567 ; 14 N. Y. State Rep., 15) and Kaveny v. City of Troy ( 108 N. Y., 571 ; 14 N. Y. State Rep., 18).

In Kinney v. City of Troy (supra), the earlier Case of Todd v. City of Troy (supra), is referred to and distinguished and its authority restated. In such earlier case the proposition is expressly laid down that it is the duty of municipal authorities to see that the sidewalks of a city are kept reasonably clear ot ice and snow, and that when they permit an accumulation thereof to remain an unreasonable length of time to the danger of travelers, the corporation is chargeable with negligence without proof of actual notice.

We do not think that any error necessitating a reversal occurred upon the trial. Counsel for appellant claims that the court erred in allowing evidence to be introduced, of injuries other than those to plaintiff’s arm, because only such injuries were set up in the complaint. But it does not appear that' any evidence of other injuries was admitted after defendant’s counsel objected to the same. It is true'.

This testimony was given without objection. Subsequently, counsel for defendants moved to strike it out. A motion of this kind is always in the discretion of* the court, and the refusal to grant it is not error. The court did intimate an intention to receive all the evidence of all the injuries which plaintiff suffered, but as no testimony was actually .received subsequently which related to anything but the injuries to the arm, the exception on this point would have no practical force, even if it were theoretically well taken.

It is difficult to perceive upon what counsel for appellant bases his claim that the court erred in refusing to admit testimony of contradictory statements that the witness, Walker, had made, previous to the trial. The question was asked this witness on his direct examination, whether he did not say in the presence of. the witnesses, Moore, Lake and Ryan, “ the woman I was boarding with is going to bring a suit against the city, but she is a skin, and has got no case, and there was no ice where she fell, and I boarded in the house and know/’ He denied having ever uttered these words, and quite properly the three other witnesses referred to, when they were examined on behalf of defendants, were allowed to contradict him on this point, and, as it appears, this testimony of theirs was taken without objection. Defendant had the undoubted right to prove such contradiction for the sake of discrediting plaintiff’s witness with the jury, and must have received the full benefit of the same. The proper foundation for this particular contradiction had been laid by calling Walker’s attention to the alleged conversation in his cross-examination, and stating circumstantially the place where it occurred and the persons with whom it was had. But the court correctly held that the defendant could not introduce evidence of inconsistent and contradictory declarations made by the witness out of court to which his attention had not been specially directed when he was on the stand.

There are no other exceptions in the case, which, in our judgment, call for discussion or require notice, and the judgment appealed from should be affirmed, with posts.

Bookstaver, J., concurs.