Opinion
October Term, 1897.
Judgment affirmed, with costs.
From the summary of the evidence it will be seen that there was a clear conflict upon the crucial question as to whether or not there was a hole in the second step of the bridge in which some portion of the plaintiff's foot became entangled while she was descending the bridge. It was not seriously disputed that on the evening in question the plaintiff was injured at or near the bridge; but the effort on the part of the defendant was directed to showing that there was no hole in the bridge and that the plaintiff might have fallen two or three feet from the steps owing to the defective condition of the sidewalk. It is true there is some discrepancy in the testimony of the plaintiff's witnesses as to the character of the hole in the second step, one describing it as a break and the others stating that it was a V-shaped opening in the planks, widening towards the street side. None of the witnesses, however, claimed that there were two separate and distinct holes, and the discrepancy in the description as to the character of the hole and its size and location is easily explainable by the fact that some of the witnesses examined it on the night of the accident, in the absence, as shown, of sufficient light, and were testifying a long while afterwards as to their recollection of its appearance. Upon the whole case we think, as did the learned trial judge, that it was proper to submit as questions of fact the defendant's want of care in the maintenance of the bridge and the plaintiff's freedom from contributory negligence; and such questions having been presented in a fair and impartial charge, this court would not be justified in interfering with the verdict of the jury unless upon the ground of special errors assigned. All of these, except one, relate to certain portions of the charge as made, to the modification of requests or refusals to charge as requested by the defendant; but, in view of the favorable manner in which, so far as the defendant was concerned, the different questions were presented to the jury, we think that the exceptions to such rulings are hypercritical. The only ruling assailed, exclusive of those relating to the charge, is the refusal of the court to permit evidence as to whether any complaint had been filed with the department of public works in regard to anything concerning the bridge or the said premises in course of construction. We think this ruling was right, and for two reasons: If the plaintiff had sought to recover upon the ground of a nuisance, such testimony might in some way have been relevant; but, where the action was predicated upon the negligence of the defendant in constructing and maintaining for an unreasonable time a bridge which was defective, and which was used by the public as a substitute for the sidewalk, this, if proven, could in no way be affected by the question whether complaints were or were not filed with the department of public works. The second reason lies in the fact that similar evidence was sought to be introduced by the plaintiff in questions put to one of the policemen, as to whether he had ever made a report to the public authorities of the unsafe condition of the bridge, and under the defendant's objection, such evidence was excluded. While it is true that the objection was to the form of the plaintiff's questions, there is little reason to doubt, with respect to one of the questions at least, that the court's ruling was based upon the theory, not only that the question was erroneous in form, but that the evidence sought to be adduced was irrelevant and incompetent. Having successfully got the court to take this position, we do not think that when the defendant sought to introduce similar evidence, he can with good grace urge that it was error on the part of the court to apply the same rule. Our examination of the record, therefore, has led us to the conclusion that no substantial error was committed, such as would justify our reversal of a judgment entered after a trial which was in every way conducted with a view of according to the defendant all his rights, and which, upon conflicting evidence, resulted in a verdict in plaintiff's favor for an amount which, in view of the extent of the injuries, must be regarded as moderate. The judgment should, therefore, be affirmed, with costs. Van Brunt, P.J., Rumsey, Patterson and Parker, JJ., concurred.