Gage v. S. Mills Ely Co., 132 N.Y.S. 953

Gage v. S. Mills Ely Co.

132 N.Y.S. 953 | N.Y. App. Div. | 1911

PER CURIAM.

We think the situation disclosed presented a question of fact for the jury as to the negligence of the defendant in failing to inspect and strengthen the floor which gave way, as well as the contributory negligence of the plaintiff, and whether or not Thorp was acting as superintendent.

[1] It is unimportant whether the plaintiff was working after hours or not.

[2] No error was committed in refusing to permit the carpenter who made the repairs to state the conversation which he had with the owner of the building. He was permitted to say that he repaired it at the request of the owner, and to tell all that he did, and that the owner informed him that the building was to be used for heavy storage. The most favorable answer which the witness could have given to the defendant would have been to say that the owner told the carpenter to fix the floor so that it could not give way. Under the situation disclosed, such instructions would not have exonerated the defendant from an inspection to determine whether those instructions had been carried out.

[3] Nor was there any error in permitting the physician, Dr. Hall, to testify, as he asserted he was entirely able to do, that the plaintiff was suffering from one of two diseases which might have been caused, by the accident to the plaintiff. Quinn v. O’Keefe, 9 App. Div. 68, 41 N. Y. Supp. 116. Besides, the verdict, as finally reduced by the-trial court to $1,250, can be very properly considered not to embrace damages for the more serious disease which the physician mentioned.

The judgment and order should be affirmed, with costs.