Opinion
May 20, 1954.
Present — McCurn, P.J., Vaughan, Kimball, Piper and Wheeler, JJ.
Order modified by adding to the last ordering paragraph the following: "except accident investigation records and claim records containing names and addresses of witnesses", and as modified affirmed, without costs of this appeal to any party. Memorandum: Plaintiff's complaint alleges that she fell and was injured while leaving defendant's store; that, among other things, the defendant was negligent in that the steps and exit doors were negligently constructed and maintained, so as to constitute a trap and dangerous condition. The order appealed from permits an examination before trial as to "All previous accidents in which any persons fell or sustained any injuries by falling prior to the 11th day of January, 1952, at that portion of the premises above designated." The appellant contends that the order should be modified so as to limit the examination to prior accidents occurring "under the same or similar circumstances." While it is true that evidence upon the trial must be confined to accidents occurring under the same or similar circumstances, it is the trial court which eventually determines the competency of the evidence offered. We conclude that under the circumstances we should not disturb the discretion of the Special Term. We conclude also that the last ordering paragraph providing for the production of books and papers should be modified by excepting therefrom accident investigation records and claim records containing names and addresses of witnesses. All concur.