Opinion
October, 1916.
Present — Jenks, P.J., Thomas, Carr, Rich and Putnam, JJ.
The exception at the close of the trial to the ruling that plaintiff should then elect between nuisance and negligence did not present reversible error, since such election then did not harm plaintiff, as the proofs of defendant's authority from the city to place material on this curb negatived the charge of nuisance. The issues of negligence were properly left to the jury. If that morning the light was sufficient to disclose the presence, as an obstruction, of these planks, when plaintiff stepped down from his wagon and tripped on them, he could not recover. Plaintiff was not entitled to the charge that defendant should also have marked the planks by a red light. The order denying a new trial is, therefore, unanimously affirmed, with costs.