Martin v. Wood , 1 Silv. Sup. 212 ( 1889 )

Merwin, J.

A witness for plaintiff was asked upon his cross-examination to look at a paper, and was then asked: “Did you vote a ticket like that? Answer. I didn’t vote that ticket. Question. Is that a copy?” This was objected to by plaintiff’s counsel; that under our laws a man has a right to vote as he pleases; that right cannot be called in question in any collateral matter. The evidence was offered with a view of showing that the ticket voted by witness at town meeting was blasphemous, and as affecting the credibility of the witness, and was excluded. The propriety of this ruling is fully discussed by Mr. Justice Vann in his opinion upon the motion at special term, reported in O. V. Supp. 208. We agree with him that the ruling was correct. The trial court had a discretion in the matter, and it was properly exercised.

The evidence of the value of the services of the wife of the plaintiff in the ■care of the injured child was properly received. The loss of the plaintiff in that regard was a part of his damage in the matter, and no objection was taken that it was not specifically stated in the complaint. Uertz v. Manufacturing Co., 35 Hun, 116.

The evidence of the attending physician of the complaints of the child when he made by manipulation a personal examination of the injured parts was proper. It was during her illness, and in the line of his professional attendance. Roche v. Railroad Co., 105 N. Y. 295, 11 N. E. Rep. 630.

The question of contributory negligence was, under all the circumstances of the ease, for the jury. There was in the case as given to the jury an element •of willful injury, to which, as charged by the court, the theory of contributory negligence did not apply. The charge was not excepted to. The point as to contributory negligence was only raised on motion for nonsuit, and would not then be available if in one phase of the case it did not apply. •

It follows that the judgment and order should be affirmed. All concur.