13 N.Y. St. Rep. 81 | New York Court of Common Pleas | 1888
—Most of the exceptions that were taken at the trial may be disposed of without discussion, as it is obvious that they are not tenable. For instance, it is plain that where it appears upon cross-examination that the testimony given in chief was merely hearsay, the court may, if it deems that course the best, strike out the testimony; it is not always the wisest policy to allow the testimony to stand, and instruct the jury to disregard it (Sokes v. Johnson, 57 N. Y. 673; Farmers’ Bank v. Cowan, 2 Abb. App. Dec. 90; Platner v. Platner, 78 N. Y. 162).
So, also, it is plain that the court properly overruled the question put to the plaintiff, who was suing for the loss of his wife’s services: “ What, in your opinion, are the services of your wife worth to you ? ” The jury, not the plaintiff,
It was perfectly proper to exclude the question as to the manner in which the pole was set in the ground after it had fallen, and injured the wife of the plaintiff. Ordinarily negligence cannot be shown by proof of what occurred subsequently to the .happening of an accident (56 N. Y. 1-8). There are cases in which an injury is caused through the disrepair of an article, and in such cases the fact that repairs have been made directly after the accident is regarded as proof that the article was out of repair when the injury occurred (Dale v. Delaware &c. R. Co., 73 N. Y. 472). To prove that a pole, which was designed to be for the permanent use of the tenants of the house, was re-erected after it had fallen down, did not tend to prove negligence in the original setting of it, nor could an inference fairly be drawn that the original setting was negligent from the fact that the defendant, when re-setting it, determined to increase the depth of the hole in which it was to be sunk. That the pole was negligently set at the time of the accident was not to be proved by testimony that the defendant displayed excessive caution in re-setting it.
We think that there was no abuse of power in the course taken by the judge with respect to the last request for instructions that the plaintiff presented. The plaintiff had already handed up certain written requests for instructions, and these the court had passed upon. After the jury had been charged at length, and when they were about to retire, the plaintiff orally asked the judge to give another instruc
Some exceptions were taken to the rejection of testimony that was offered to show the severity of the woman’s injuries, but in the view that we take of the case it is not necessary to examine them in detail, because the verdict leaves no room for doubt that the jury found that the woman was not injured through the negligence of the defendant. The controlling question in the case was, not whether she had been
There was in the case ample evidence that the woman had been sick, that the plaintiff had been deprived of her services for a long time, and that he had expended a considerable sum for nursing her, and for medical attendance upon her. These damages the plaintiff must have recovered under the charge of the court if the jury had believed that the woman had been injured by the falling of the pole. The main contest in the case was, as the testimony discloses, over this question: did the pole when it fell strike the woman at all ? The jury found that it did not, and the verdict was well supported by the evidence.
Judgment affirmed, with costs.