1 N.Y.S. 596 | N.Y. Sup. Ct. | 1888
A man in the employ of one McLaughlin placed on the sidewalk in front of the Laughlin building a counter, leaning it against the building. This was on Tuesday. The counter remained in the same position, without falling, until Saturday afternoon. Then three children, about five or six years old, of whom the plaintiff’s intestate was one, pushed it down. It fell on the plaintiff’s intestate, and he was killed. This action is to recover against the city damages for that death. In the case of Parker v. Cohoes, 74 N. Y. 610, affirming 10 Hun, 584, the city of Cohoes had itself put piles of dirt in the street, and had placed a barrier to prevent persons from driving upon these piles. This barrier was removed by some third person, for what reason did not appear, and the plaintiff drove on the piles, and was injured. There was no proof whether the removal was intentional or acci
The seventh request relates to the language “voluntary and culpable negligence.” On examining this request of the court, and the language of the court in its charge, we do not see any error. As a duty is imposed on the city to remove obstructions after notice, actual or constructive, neglect is culpable, and can hardly be called involuntary.
Objection was made by defendant’s counsel to language used by plaintiff’s counsel in his opening, to his stating the amount of the former verdict, and the purport of former decisions. We think that this is a matter so much within the discretion of the trial judge that we should seldom review his action. Of course, in strictness, counsel, in opening, should state nothing but the nature of the action, and the facts of the case, as they may be proved. We cannot see that harm was done in this case. On the whole, we think that the case was tried according to the law as it was stated in the opinion of the court of appeals. As the decision of that court granted a new trial, the proof must have been held to make a case for the jury on all the points of defense; and the testimony was substantially the same now as on the former trial. Judgment and order affirmed, with costs.
NOTE.
Trial—Misconduct of Attorney in’ Argument. It is improper for an attorney to make a statement to the jury of a fact, as of his own knowledge, which has not been introduced in evidence, relating to the issues of the case, People v. Dane, (Mich.) 26 N. W Rep. 781; Hall v. Wolf, (Iowa,) 16 N. W. Rep. 710; Amperse v. Fleckenstein, (Mich.) 34 N. W Rep. S64; Tillery v. State, (Tex.) 5 S. W. Rep. 842; Bullard v. Railroad Co., (N. H.) 5 Atl. Rep. 838; Railway Co. v. Metzger, (Neb.) 38 N. W. Rep. 27; or to refer to matters not in evidence, calculated to prejudice the other party, Norton v. State, (Ind.) 6 N. E. Rep. 126; Brow v. State, (Ind.) 2 N. E. Rep. 296; Epps v. State, (Ind.) 1 N. B. Rep. 491; State v. Abrams, (Or.) 8 Pac. Rep. 327; Clark v. State, (Tex.) 5 S. W. Rep. 115.
It is also improper for an attorney to comment on the fact that the other party has taken a change of venue, Campbell v. Maher, (Ind.) 4 N. E. Rep. 911; or on papers not in evidence, and the conduct of parties in connection therewith, Donovan v. Richmond, (Mich.) 28 N. W. Rep. 516; or on evidence that has been excluded, Paper Co. v. Banks, (Neb.) 16 N. W. Rep. 833; or on the fact that the defendant in a criminal case has refrained from testifying, Petite v. People, (Colo.) 9 Pac. Rep. 622: State v. Balch, (Kan.) 2 Pac. Rep. 609; orto appeal to prejudices foreign to the case, Bremmer v. Railroad Co., (Wis.) 20 N. W, Rep. 687; Rickabus v. Gott, (Mich.) 16 N. W. Rep. 384; Porter v. Throop, (Mich.) 11 N. W. Rep. 174; State v. McCool, (Kan.) 9 Pac. Rep. 745.
Misconduct of an attorney in arguing a case is a ground .for reversal of the verdict and ordering a new trial, Campbell v. Maher, (Ind.) 4 N. E. Rep. 911; Brow v. State, (Ind.) 2 N. E. Rep. 296; Bremmer v. Railroad Co., (Wis.) 20 N. W. Rep. 687; Paper Co. v. Banks, (Neb.) 16 N. W. Rep. 833; Hall v. Wolf, (Iowa,) Id. 710; Rickabus v. Gott, (Mich.) Id. 384; if the adverse party is prejudiced thereby, Boyle v. State, (Ind.) 5 N. E. Rep. 203; Shular v. State, (Ind.) 4 N. E. Rep. 870; Anderson v. State, (Ind.) Id. 63; Epps v. State, (Ind.) 1 N. E. Rep. 491, Donovan v. Richmond, (Mich.) 28 N. W. Rep. 516; People v. Dane, (Mich.) 26 N. W. Rep. 781, and note; Sunberg v. Babcock, (Iowa,) 24 N. W. Rep. 19; Burdick v. Haggart, (Dak.) 22 N. W. Rep. 589; State v. Miller, (Iowa,) 21 N. W. Rep. 181; Porter v. Throop, (Mich.) 11 N. W. Rep. 174; Tillery v. State, (Tex.) 5 S. W. Rep. 842; State v. Clouser, (Iowa,) 33 N. W. Rep. 686.
As to what is not improper in argument, see Boyle v. State, (Ind.) 5 N. E. Rep. 203; Shular v. State, (Ind.) 4 N. E. Rep. 870; Thomas v. State, (Ind.) 2 N. E. Rep. 808; Scott v. Railroad Co., (Iowa,) 27 N. W. Rep. 276; Gavigan v. Scott, (Mich.) 16 N. W. Rep.769; State v. Brooks, (Mo.) 5 S. W. Rep. 257.
As to improprieties not sufficient to justify a reversal, see Norton v. State, (Ind.) 6 N. E. Rep. 126; Anderson v. State, (Ind.) 4 N. E. Rep. 63; Hinton v. Railroad Co., (Wis.) 27 N. W. Rep. 147; Tucker v. Cole, (Wis.)ll N. W. Rep. 703: Porter v. Throop, (Mich.) Id. 174; People v. Bush, (Cal.) 10 Pac. Rep. 169; State v. McCool, (Kan.) 9 Pac. Rep. 745; Petite v. People, (Colo.) Id. 622; State v. McCool, (Kan.) Id. 618; People v. Hopt, (Utah,) Id. 407; State v. Abrams, (Or.) 8 Pac. Rep. 327; State v. Winter, (Iowa,) 34 N. W. Rep. 475; Lamar v. State, (Miss.) 3 South. Rep. 78: Railroad Co. v. Fox, (Tex.) 6 S. W.Rep.569; Jackson v. Harby, (Tex.) 8 S.W. Rep.71; Battishill v. Humphreys, (Mich.) 38 N. W. Rep. 581.