Forde v. Nichols — 36 N.Y. St. Rep. 729

Majority

p. 729

John Forde, Resp’t, v. James E. Nichols et al., App’lts.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

1. Negligence—Nuisance—Charge.

In an action for injuries alleged to have been caused by the maintenance of an obstruction in a street, a charge that plaintiff, to recover, must prove defendants’ negligence, and the absence of contributory negligence on his part, is more favorable to defendants than they have a right to ask.

2. Same—Evidence.

In such an action it is proper to ask a medical witness what results will follow with reasonable certainty from the injuries.

8. Same—Condition of premises.

Evidence is also admissible as to the nature, appearance and use of the structure claimed to be an obstruction within a few hours after the accident.

Appeal from judgment entered upon a verdict in favor of plaintiff, and from order denying a new trial in an action to recover special damage resulting to plaintiff from the maintenance of a nuisance by defendants.

Defendants had erected a platform in front of their premises extending six inches beyond the stoop line, which had movable steps, and also a platform along the curb of the sidewalk, for the

p. 730

purpose of loading goods upon their wagons. Plaintiff, finding the sidewalk obstructed by these and the skids connecting them, endeavored to pass by, using the steps and platform, and when upon the third step slipped and fell, sustaining the injuries complained of.

John Proctor Clarke, for resp’t; Henry D. Hotchkiss, for app’lts.

This case presents no error of sufficient importance to call for a reversal of the judgment and order appealed from. The evidence was abundant to warrant the verdict and the facts proved established defendants’ liability beyond all questiqn. So also the charge, proceeding partly upon the theory that to entitle plaintiff to a recovery he must establish defendants’ negligence and absence of contributory negligence on his part, was more favorable to defendants than they had a right ask. Wood on Nuisances, §§ 295, etc., and cases cited: Irvine v. Wood, 51 N. Y., 224 ; Creed v. Hartmnan, 29 id., 591; Congreve v. Smith, 18 id., 79; Congreves. Morgan, id., 54.

The question addressed to and answered by plaintiff’s medical witness, Dr. Palmer, “ What results will follow with reasonable certainty from the injuries which you observed,’’ was competent and proper and was in strict accord with the ruling in Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y., 305 .

So also the testimony of John K. Forde, a witness for the plan-tiff, as to the nature, appearance and use of the structure, claimed to be an encroachment upon the public highway, within a few hours after the injuries to the plaintiff, was relevant and, therefore, competent and properly allowed.

The judgment and order appealed from should be affirmed, with costs.

Allen, Bischoff and Pryor, JJ., concur.