Gibbons v. Village of Phœnix — 39 N.Y. St. Rep. 658

Majority

p. 658

Elizabeth Gibbons, Resp’t, v. The Village of Phœnix, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed July 7, 1891.)

Headnote

1. Negligence—Contributory.

In an action for injuries caused by a fall on a defective sidewalk plaintiff testified that she knew the walk was poor, but did not see the hole, as she was looking at her child's dress in front of her. There was a broken plank at the spot which would go down when stepped on. No point as to contributory negligence was made at the trial, nor any motion for nonsuit made. Held, that the verdict in favor of plaintiff could not be disturbed on the ground of contributory negligence.

2. Same—Evidence.

Evidence of plaintiff’s physician to the effect that a miscarriage subsequently suffered by her might be traced to the injury she received in such fall, is admissible.

p. 659

Appeal from a judgment entered in Oswego county on the 28th October, 1890, upon a verdict in favor of the plaintiff for $300 -at the Oswego October circuit; appeal also from an order denying a motion on the minutes for a new trial.

The action is based on negligence and is brought to recover the damages sustained by plaintiff in falling upon a sidewalk in the village of Phcenix on the 24th June, 1890.

Avery & Merry, for app’lt; O. M. Reilly, for resp’t.

—Mo question is made about the negligence of the defendant. Tery clearly that was a question for the jury. It is not so clear as to the absence of negligence on the part of the plaintiff. In the forenoon' of a pleasant day, the plaintiff, with two small children, one about three years old and the other two, was passing along the sidewalk in question when, as she says, her foot went down in a hole and she fell on her knees and a piece of board flew up and struck her in the side. She had one of the children by the right hand and the other was just ahead.. She says: “I knew the sidewalk was poor, but I didn’t see the hole before I fell; I was looking right down at my child’s dress in front of me; he had passed over the hole in which I fell; he only just stepped over and I went right along behind him and like to went right into the hole; down I fell upon my knees. * * * I was walking very slow when the accident occurred; I was not giving any attention to the sidewalk; I was walking along just the same as I would at any other time.” From other evidence it appeared that there was at that point a broken plank, which when stepped on would go down, and that it may have been so placed that no hole was apparent until the plank was actually stepped on. If that was so, it would materially affect the question of contributory negligence.

At the trial no point was made as to contributory negligence, nor was any motion for nonsuit made. The case upon its merits-was fully and fairly presented to the jury by the court in a charge that was not excepted to.

In Palmer v. Dearing, 93 N. Y., 10 , it is said: “ While previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence and. prudence might reasonably apprehend injury, generally imposes upom him the duty of exercising greater care and caution in approaching it, vet the degree of care which should be required of such a person has uniformly been held in this state to be a question of fact to be determined by the jury.”

In view of this rule, and the failure to raise any question on the subject at the trial, we think that the verdict should not be interfered with on the ground of contributory negligence.

It is further claimed by the appellant that the evidence in the case is not sufficient to warant the jury in finding that the miscarriage complained of was caused by the fall. The evidence on this subject was conflicting. Its weight upon either side of the disputed question was for the jury, and no sufficient ground is apparent for us to interfere. The physician who attended the

p. 660

plaintiff after the injury was allowed to state, in reference to the cause of the miscarriage, that it might be traced to the injury she received in falling on the sidewalk. This was proper. Turner v. City of Newburgh, 109 N. Y., 301 ; 15 N. Y. State Rep., 93. The physician, in giving this opinion, based it generally upon the evidence of the plaintiff as to the manner in which she fell. It is now suggested that this was not correct, but that his opinion should have been taken upon a definite hypothetical case. This ground of objection was not taken. Had it been taken, it might have been obviated. It is not now available. No other grounds of reversal are presented.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.