30 N.Y.S. 954 | N.Y. Sup. Ct. | 1894
The plaintiff, in walking on the sidewalk along the westerly side of Main street, in the city of Niagara Falls, on the evening of June 28, 1893, stepped into a hole in the walk, and sustained an injury. He brought the action to recover the damages he sustained. The hole in the walk about seven inches in width, extending across the walk, and about the same depth, was occasioned by the absence of a plank; and the evidence tended to prove that it had been in that condition two or three months at that time, and that the street was a main thoroughfare of the city. The conclusion was warranted, upon the evidence, that the defect in the walk at the time in question was attributable to the negligence of the defendant, and that the plaintiff was free from contributory negligence. Those questions were fairly submitted to the jury, and they found upon them in the affirmative.
Dr. McBlane, who had treated the plaintiff for a short time immediately following the injury, and saw and examined him again at the time of the trial, was asked, “In your opinion, is the present condition which you found permanent?” and, after a general objection and exception, answered, “I am inclined to think it is permanent.” Thereupon the motion of the defendant’s counsel to strike out the answer was denied, and exception taken. The witness further testified, “My opinion is that it is permanent.” The injury as-described by the doctors was a fracture of the neck of the right femur, and, as the consequence of this fracture of the thigh bone, the' right leg of the plaintiff had shortened about three-fourths of an inch, and the doctor testified that the movement of it was somewhat limited. It was to this condition that he referred in the expression of his opinion. It is urged by the defendant’s counsel that this evidence was merely speculative as to the possible developments and the condition of the limb in the future, and, within the doctrine of Strohm v. Railroad Co., 96 N. Y. 305, inadmissible. Such is not the nature of the evidence. By it the doctor expressed his opinion about the continuance of the known present condition of the plaintiff’s limb. This was clearly competent. Griswold v. Railroad Co., 44 Hun, 236; Id., 115 N. Y. 61, 21 N. E. 726; McClain v. Railroad Co., 116 N. Y. 459, 22 N. E. 1062; Alberti v. Railroad Co., 118 N. Y. 77, 23 N. E. 35.
By the charter of the defendant, it was a condition precedent to the maintenance of an action for the cause alleged by the plaintiff that the claim in writing be presented to the common council within