82 N.Y. 278 | NY | 1880
This action is brought by the plaintiff for injuries sustained in his person and property while traveling upon the defendant's road.
On the 28th day of September, 1875, the plaintiff was driving his horse upon the road hitched to a skeleton wagon, and when upon a bridge, his horse was frightened by a pile of stones in the road, and sprang over the bridge, breaking his leg, injuring the plaintiff, and damaging the wagon. The stones were placed beside the traveled part of the road, under the direction of the defendant, one week before the accident, for the purpose of repairing the bridge. The plaintiff gave evidence tending to show that the stones had a tendency to frighten horses traveling upon the road, and had actually frightened such horses, and that four or five days before the accident the defendant was notified of the dangerous character of the pile of stones.
If the pile of stones had a tendency to frighten horses and was of a dangerous character, although not technically a defect or obstruction in the highway, I entertain no doubt that the defendant could be made liable for damage caused to travelers thereby, after notice of its character and neglect to remove the same. (The Waterford Whitehall Turnpike Co. v. The People,
9 Barb. 161; Wendell v. The Mayor of Troy, 39 id. 329;Davis v. City of Bangor,
I have no doubt that the defendant was sufficiently notified of the dangerous character of the pile of stones, if the notice was given, as claimed by the plaintiff, to Hubbell, the secretary and treasurer of the company. He was such an officer as is usually competent to receive notices affecting such corporations, and it appears that he actually had some part in the practical management and superintendence of the road.
The defendant was entitled to a reasonable time after receiving the notice, in which to remove the stones. Hubbell testified that he received the notice on a certain day about ten o'clock, which appeared by other evidence to have been on the same day and about the time the accident happened. Plaintiff's witness Pulver testified that he gave the notice four or five days before the accident. There was thus a serious conflict in the evidence upon this material point.
After these two witnesses had testified, the wife of Pulver was called as a witness by the plaintiff, and she testified that she was with her husband on the day when Hubbell testified the notice was given to him, and that he did not have any conversation with Hubbell; that he did not speak to any one at the toll-gate but the gate-keeper, Mr. Carpenter; and then this question was put to her by plaintiff's counsel: "Did Mr. Pulver on that morning, in the conversation which you have stated he had with Carpenter at the gate about the accident, say to Carpenter that he had given Mr. Hubbell notice a week before of these stones frightening horses, or that he had told Hubbell about it the week before?" This was objected to by defendant's counsel as leading, illegal, improper, immaterial, and as seeking to prove a conversation between third persons, and of an inadmissible character. The referee overruled the objections, and defendant's counsel excepted to the ruling. The witness answered, "Mr. Pulver said: `Those stones were a bad thing, and I told him so, and wished them to be removed; that my horse had been frightened.'"
This question was clearly incompetent, and the evidence *283 should not have been received. What Pulver said to Carpenter was wholly immaterial and the evidence was designed, and had a strong but illegitimate tendency to fortify the evidence of Pulver previously given, that he had notified Hubbell of the pile of stones prior to the day of the accident. The evidence was very damaging in its character to the defendant on a vital point. It was not justified by any evidence previously given, or any course of examination indulged in on the part of the defendant.
This is an error which we cannot overlook, and the judgment must therefore be reversed and a new trial granted, costs to abide event.
All concur, except RAPALLO, J., absent, and MILLER, J., taking no part.
Judgment reversed.