105 A.D. 90 | N.Y. App. Div. | 1905
Upon the trial the plaintiff recovered a verdict of $4,000 for personal injuries alleged to have been sustained in consequence of her falling over an extension of a passageway constructed by the defendant for the use of foot passengers, across and over a tunnel
The only allegations in the complaint of wrongful acts of negligence, upon which the liability of the defendant was predicated when the cause was moved for trial, are contained in its 3d subdivision in the following language:
“ Third. That at the said northeast corner of Fourth avenue and Twentieth street, defendant wrongfully and unlawfully extended such passageway over and upon the sidewalk thereby obstructing the same and creating a nuisance. That defendant, its servants and agents were negligent in that they totally failed to warn passersby of such obstruction, and more especially in that at night they placed no lights or other warning signals at said place. That defendant thereby violated the ordinances in such case made and provided and then in force in the Borough of Manhattan, in the City of New York, and more especially Chapter 5, Article 12, Section 220 of said ordinances,” and this section is set out in full. The case had been once tried upon this pleading, with a result not shown by the record.
After the action had been moved for trial and a jury impaneled and sworn, counsel for the defendant moved to compel the plaintiff to elect under which cause of action she would proceed — nuisance or negligence. This motion was denied, and plaintiff’s attorney opened the case to the jury, after which, as shown by the record, the following took place: “ The Court: I take it that the question of liability depends on, first, whether this was in itself a negligent construction. Mr. Patterson: There is no allegation of negligence or defective construction in the complaint. The Court: Whether it was negligent construction, that is, whether they did not make it as safe as they reasonably should. Mr. Patterson: The only allegation they have in the complaint is that we were negligent because we did not have suitable and sufficient lights according to an ordi. nance. There is no allegation in this complaint of defective con
The plaintiff rested without having given any evidence of the negligent construction of the bridge, and counsel for the defendant, after moving for a nonsuit, again asked the court to direct the plaintiff to elect on what theory she was going to try the case, whether on a nuisance or negligence, to which the court replied : “ Without that election, I hold that there is nothing here except a question of negligence. Mr. Powell: And as I understand it, your Honor has allowed us already to amend our complaint in that regard. The Court: Yes. Mr. Patterson: Then do you elect not to stand on the nuisance ? Mr. Powell: I follow the election of the Court. The Court: I hold they have made out no case for á nuisance. There is not any case proved on a nuisance. * .* * The Court: I rule that they have not made out any cause of action for a nuisance. Mr. Patterson : Then will you admit that we were authorized to erect this bridge? The Court: Well, I hold you were, on their admissions. Of course, Mr. Powell, if they should get a verdict, you could appeal and say that I was wrong in holding that you hadn’t made out a cause of action for a nuisance, you might reverse' any judgment in their favor, so perhaps it is necessary that you now abandon any claim that they are liable on the ground of nuisance for the purposes of this trial. Mr. Powell: Your Honor, having stated the rule that we have not proved the cause of action upon the ground of a nuisance, I now state for the purposes of this trial that the plaintiff acquiesces in that ruling and accepts it.”
The case was submitted to the jury upon the theory of the complaint as amended by the court, that of the “ negligent construction.” While it may be true, as contended, that under -the amendment plaintiff made no other or different proof than she would have given under the original pleadings, I am unable to find any
The trial court, after having charged the jury as to plaintiff’s knowledge of the conditions existing at the place of injury, in the following language: “ She knew that at Fourth avenue, and had known for a long time, this work was going on, and that there
As the judgment and order must be reversed for the reasons already stated, it is unnecessary to consider the other questions presented by the appellant.
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Hirsohberg, P. J., Woodward, Jeers and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.