Stone v. Town of Poland

On May 22, 188T, the plaintiff was driving a horse and carriage, in which he was riding, on a highway in the town of Poland, county of Chautauqua, and having crossed the bridge over Oonewango creek, he, with the horse and carriage, was suddenly precipitated over and down the easterly side of the embankment, which constituted the northerly approach of the bridge, and was injured.

Whether or not the horse stepped into the hole was an important question of fact on the trial, as the court held that if the injury was occasioned by any other cause the plaintiff could not recover, and so charged the jury. No person other than the plaintiff was present at the time of the accident. But such question was, on the part of the defendant, forcibly contested by evidence of facts and circum stances bearing upon it.

■ There had been that day erected on the westerly side of the approach, below and near to it, a boat house. For this the commis sioner was in no way responsible.

The horse was young and active, and the inference is permitted that it took fright on seeing this structure and suddenly sheered to the right. There is evidence tending to prove by reference to marks made by wheels of the buggy upon the side of the bridge, occasioned by the horse so springing to the right on passing it, that the

There was, however, some conflict in the evidence as to the distance the hole was from the planking of the bridge. And there were some conflicting circumstances arising from the testimony of witnesses who first saw and talked with the plaintiff at the place of the injury, to the effect that he then said nothing about the hole. It also appears that some blocks of wood had been put into it. And its condition, at the time of the accident, was matter of controversy in so far that evidence was given to the effect that the hole was by that means then substantially filled up even with the surface, or nearly so, while that was controverted by evidence tending to prove that the hole was open to the depth of eight inches. The horse in some manner went or fell over and down the bank. The cause of it was, upen the evidence, a question for the jury. They saw the witnesses and heard them testify. And the credit to which the testimony of the plaintiff was entitled was, in view of all the evidence and circumstances, for the jury to determine. The question whether the calamity was occasioned without any fault on his part was also for them to consider. He testified that he drove the horse on a walk over the bridge, and sought to keep it under his control by the use of the lines. This was disputed by evidence to the effect that the horse crossed the bridge at a rapid trotting gait. So far as that question was essentially matter for consideration, it may be deemed to have been disposed of by the jury. The case was fairly submitted to them with proper instructions by the court. And we see no occasion to interfere with the conclusion of the jury upon the questions of fact.

Shortly after the accident the approach at the place in question was covered with plank. And afterwards, in April, 1888, a witness, who had observed the hole shortly after the accident, and.the day of its occurrence, went there with an engineer, who was also a witness, took up some of the plank and examined the hole. He was asked to state its condition, to which the defendant’s counsel objected. The plaintiff’s counsel stated that he expected to prove that the hole was then in the same condition as it was at the time in question. The court, holding that the evidence was admissible only

In support of the exception is urged the rule which excludes evidence of the fact that changes have been made in conditions existing at the time of an injury and to which it is attributed. (Dale v. D., L. & W. R. R. Co., 73 N. Y. 468 ; Corcoran v. Village of Peekskill, 108 id. 151.)

But in the present case the changed situation about a year after the accident only incidentally appeared in the evidence by which the plaintiff sought to establish by proof the condition of its loeus ini guo at the time of its occurrence. It was in that view and for such purpose that the evidence was received. There was no error in the ruling. This question had some consideration on the review of a former trial of this action. ( 58 Hun, 21 .)

As bearing upon the question of damages a witness was asked, “ What is the value of ordinary farm labor of a young man twenty-one years of age, by the year, in the town of Poland and vicinity ? ” The defendant’s objection was overruled and exception taken. The answer given was $350, followed by further proof that the value of the services of the plaintiff as such laborer was fifty dollars per year. This evidence was evidently intended to relate only to the time since August 11, 1890, when the plaintiff arrived at the age of twenty-one years, which was only nine months before the trial, and to prove that the extent of his ability to labor was, as of such period, impaired by his injury in question. It was competent to prove the fact although the action was commenced more than two years before the trial. (Cuming v. Brooklyn City R. R. Co., 109 N. Y. 95 .) It appeared that his occupation was that of working on a farm.

The general inquiry may not have been strictly proper, as it should have been confined to the value his services on a farm would have if he had not been injured, but as no objection on that ground was specifically made and might have been obviated if it had been, the exception was not well taken.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.