Sherman v. Kortright , 1867 N.Y. App. Div. LEXIS 226 ( 1867 )

By the Court, Miller J.

The only questions presented in this case, relate to the rulings of the justice on the trial, upon the admission and rejection of evidence.

I. It is objected ‘that the court erred in rejecting the evidence offered by the counsel for the plaintiff to show that within a week of the time of the accident, a person was upset, and a lady was thrown out of the wagon in which she was; that this occurred at the same place; and that about the same time the plaintiff was injured, or within two or three months of that time, several accidents occurred of a similar kind, from the same cause, at the same place. .1 think that the evidence was not admissible. (1.) That other accidents of the same kind had occurred, previously, and that a person had been thrown out of a wagon, on a prior occasion, would not necessarily show the condition of the highway at the time when the plaintiff was injured. (2.) The admission of such testimony would necessarily involve an inquiry as to the circumstances under which the accidents alleged took place, and thus present new issues, and open a wide and extended field of investigation, which would scarcely be allowable in such a case. (3.) It would not be sufficient, I think, for the purpose of showing that the road was improperly constructed, or that the accident to the plaintiff was caused by defects in the construction of the road, existing at the time when it occurred. It subsequently appeared that the breaks in the road were made a day previous to the accident, and hence it could not be important what the condition of the road was a week or within two or three months previous. (4.) The proof offered did not prove, or in any way tend to show that the defendant had any knowledge of the dangerous character of the road, at the time when the plaintiff was injured.

II. It is said that the court erred in permitting the defendant to prove that he had no malice or ill will, or intention to injure the plaintiff. The objection was made after the testimony had been given, and no motion was made to strike it out. It may be questionable whether it is available; and I have some doubt on that point. (See Cheesebrough v. Taylor, 12 Abb. 227.) But even if the objection had been made in .due season, I think the evidence was entirely competent. The plaintiff alleged in one count of his complaint that the defendant was fully informed and knew of the danger of the embankments placed by him upon the highway, and that he willfully and wrongfully persisted in erecting and maintaining them across the highway, thus making an issue in the case as to the defendant’s malice and intentions. It was proper, therefore, to show an absence of any wrong intention, or any malice or ill will towards the defendant. The evidence only bore upon the question of damages, and did not in any way tend to prejudice the plaintiff’s right to recover any damages which might naturally and necessarily flow from the act of the defendant, if it was unlawful and unauthorized.

III. It is further urged that the court erred in permitting the defendant to prove, by one of the witnesses, that he and others who were consulted concurred with the defendant in approving of the way and manner in which the breaks were made. The objection to this evidence was not made until the testimony was given, and is liable to the same criticism as the other testimony to which objection was made, and the reasons in favor of its admissibility partake somewhat of the same character. It may also be remarked that the defendant, in doing the work upon the highway, was acting as a public officer, and claimed to have exercised his best judgment, in erecting the embankments. It was clearly proper to show that he had acted prudently and in good faith, in the discharge of his duty, and that he had consulted with others as to the manner in which he should make the breaks, thus seeking all means of knowledge or information within his reach. Similar evidence was subsequently received without objection, and was clearly within the issue made and on trial.

[Albany General Term, September 16, 1867.

As there was no error upon the trial, the judgment must be affirmed, with costs of the appeal.

Miller, Ingalls and Sogeloom, Justices.]