Perkins v. City of Poughkeepsie — 63 N.Y. St. Rep. 852

Majority

p. 852

Jacob A. Perkins, Resp’t, v. City of Poughkeepsie, App’lt.

{Supreme Court, General Term, Second Department,

Filed December, 10, 1894.)

Headnote

1. Evidence—Negligence.

Evidence of the condition of premises several months after an accident is not admissible, to prove defects therein at the time of the accident.

Ü. Tbial—Objections—Waiver. .

Where such evidence on the part of the defendant was excluded on the ground that none of plaintiff’s witnesses had testified to such subsequent condition, defendant, by not calling' attention to the testimony of one of plaintiff’s witnesses to such fact, waived that ground for its admission.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

G. B. Herrick, for app’lt; Frank B. Lown, for resp’t.

This action was brought to recover for injuries received by the plaintiff while riding on one of the public streets of the city of Poughkeepsie. While being conveyed to his home, a hired cab in which he was riding was driven into a hole, and the plaintiff thrown from his seat, and so jolted and shaken as to inflict serious injury upon him. There was evidence from which the jury were permitted to find that the hole had existed for a long time previous to the accident, and the negligence of the city in reference to it was established. The principal question of fact litigated upon the trial was as to existence of the hole. The plaintiff supported his allegation by his own testimony and that of the cab driver and several other witnesses. Opposed to this testimony was that of 15 residents upon the street—among them, several who drove over it, and all of whom had opportunity to observe its condition—that they never had seen the hole described by plaintiff’s witnesses.. The accident happened in the month of August, 1892. The defendant called a witness to prove the condition of the street in April, 1893, which evidence the court excluded, upon the plaintiff’s objection. This evidence was clearly inadmissible, as it had no tendency whatever to show that the hole did not exist in August, 1892. In excluding it, however, the court said that, if there had been any testimony given upon the direct examination of any of the plaintiff’s witnesses as to the condition of the street in 1893,- he would admit the evidence. It is apparent from the ruling of the court that he was not aware that any such testimony had been given, and the plaintiff’s counsel was evidently of the same opinion, as his ground of objection was that he had been restrained from proving the existence of the hole in 1893. The counsel for the appellant now calls our attention to the testimony of Mrs. Baker and Mr. Mills that the whole existed in 1893. The fact was called out from the latter witness on cross-examination, and does not aid the defendant’s contention ; and, in reference to. Mrs. Baker’s testimony, if the counsel claimed that the evidence he offered was admissible to contradict her, he should have called the court’s attention to it when the ruling was made. The court distinctly stated that it would admit the evidence if any

p. 853

of plaintiff’s witness had testified in the direct examination to the condition of the street in 1893 ; and the defendant, by failing to call the court’s attention to Mrs. Baker’s evidence, must be deemed to have waived that ground for its admission. The point in the case was as to the condition of the street at the time of the accident. Its condition in the spring of 1893 had no relevancy on that issue, and the ruling of the court was right. No other question requires discussion, and the judgment and order should be affirmed.

All concur.