243 A.D. 564 | N.Y. App. Div. | 1934
Action by the infant plaintiff to recover for personal injuries sustained when she fell over the stump of a tree in the playground of defendant’s school, and by her mother to recover for expenses and loss of services. Order setting aside verdicts and dismissing complaint and judgment entered thereon reversed on the law and a new trial granted, costs to appellants to abide the event. It was error for the court to strike from the record the testimony of the witness Ina C. Atwood that the tree had been broken down a day before the accident, even though she after-wards testified that she did not know of the fact of her own knowledge. She was an adverse witness, called by plaintiffs, and it was for the jury to determine the effect of her explanation given on her cross-examination. (Becker v. Koch, 104 N. Y. 394; Sharp v. Erie R. R. Co., 184 id. 100.) Although no exception