Opinion
May 8, 1944.
Present — Close, P.J., Hagarty, Carswell, Johnston and Aldrich, JJ.
Action to recover damages for personal injuries sustained as a consequence of the plaintiff's fall down a staircase in defendant's boarding house, alleged to have been caused by the negligence of defendant in respect of a brass nosing on one of the steps. Judgment for the plaintiff unanimously affirmed, with costs. The claims of error urged in respect of the receipt in evidence of Exhibits 3 and 4 were not properly saved on this record. When plaintiff was cross-examined she was shown a photograph having two handrails upon it by way of getting her to change her story that there was only one handrail. This photograph was referred to as plaintiff's own photograph. Defendant, therefore, through the medium of plaintiff's own photograph introduced into the record the subject of whether or not there were two handrails. Having thus opened the subject and utilized plaintiff's photograph for this purpose, the defendant may not now be heard to complain of prejudice or error because of the receipt in evidence later on of the photograph, which was apparently either Exhibit 3 or 4. In any event, the question of fact on the claim of negligence did not relate to whether or not there were two handrails. It related to whether or not the nosing on the sixth step had or had not been negligently maintained, to the plaintiff's damage.