Forde v. Nichols

12 N.Y.S. 922, 36 N.Y. St. Rep. 729, 1891 N.Y. Misc. LEXIS 897

Opinion

Per Curiam.

This case presents no error of sufficient importance to call for a reversal of the judgment and order appealed from. The evidence was abundant to warrant the" verdict, and the facts proved established defendant’s liability beyond all question. So, also, the charge, proceeding partly upon the theory that to entitle plaintiff to a recovery he must establish defendant’s negligence and absence of contributory negligence on his part, was more favorable to defendants than they had a right to ask. Wood, Nuis. § 295 et seq., and cases cited; Irvine v. Wood, 51 N. Y. 224; Creed v. Hartman, 29 N. Y. 591; Congreve v. Smith, 18 N. Y. 79; Congreve v. Morgan, Id. 84. The question addressed to and answered by plaintiff’s medical witness, Dr. Palmer: “What results will follow with reasonable certainty from the injuries which you observed?”—was competent and proper, and was in strict accord with the ruling in Strohm v. Railroad Co., 96 N. Y. 305. So, also, the testimony of John K. Forde, a witness for the plaintiff, as to the nature, appearance, and use of the structure claimed to be an encroachment upon the public highway, within a few hours after the injuries to the plaintiff, was relevant, and therefore competent, and properly allowed. The judgment and order appealed from should be affirmed, with costs.