Pettingill v. Town of Olean

New York Supreme Court

Pettingill v. Town of Olean

17 N.Y.S. 433, 43 N.Y. St. Rep. 83, 63 Hun 625, 1892 N.Y. Misc. LEXIS 338

DecidedJanuary 22, 1892

StatusPublished

This text of 17 N.Y.S. 433 (Pettingill v. Town of Olean) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pettingill v. Town of Olean, 17 N.Y.S. 433, 43 N.Y. St. Rep. 83, 63 Hun 625, 1892 N.Y. Misc. LEXIS 338 (N.Y. Super. Ct. 1892).

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Opinion

Lewis, J.

The evidence tended quite clearly to show that the hole in the highway complained of had existed for a number of weeks; that it was deep and dangerous; and that the commissioner of highways of the town had been informed of it for some- considerable time before the accident. The plaintiff [434]*434offered to prove by Hazen Chamberlain, who resided near the defect in the road, that prior to the day plaintiff was injured other persons using the high-" way had been injured by driving into the hole. The evidence was excluded, and the order appealed from was granted because of the exclusion of this evidence. That the evidence offered was competent is substantially conceded by the appellant’s counsel, but he contends that many other witnesses called by the plaintiff were permitted to and did testify to similar accidents happening to others by driving into the same hole, and it being so abundantly established, by so many other witnesses, it was error to grant a new trial because of the exclusion of the testimony mentioned, as the respondent could not have been injured thereby. The trial justice saw Mr. Chamberlain; he saw the witnesses who were permitted and who did testify to similar occurrences. He had better opportunity than we have to judge as to the importance of the excluded evidence to the plaintiff’s case. Having determined that justice demanded that the plaintiff should have another trial, so as to present to another jury the evidence erroneously excluded, we cannot say he erred in granting the order appealed from. It should be affirmed, with $10 costs and the disbursements of the appeal. All concur.

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Lewis, J.

The evidence tended quite clearly to show that the hole in the highway complained of had existed for a number of weeks; that it was deep and dangerous; and that the commissioner of highways of the town had been informed of it for some- considerable time before the accident. The plaintiff [434]*434offered to prove by Hazen Chamberlain, who resided near the defect in the road, that prior to the day plaintiff was injured other persons using the high-" way had been injured by driving into the hole. The evidence was excluded, and the order appealed from was granted because of the exclusion of this evidence. That the evidence offered was competent is substantially conceded by the appellant’s counsel, but he contends that many other witnesses called by the plaintiff were permitted to and did testify to similar accidents happening to others by driving into the same hole, and it being so abundantly established, by so many other witnesses, it was error to grant a new trial because of the exclusion of the testimony mentioned, as the respondent could not have been injured thereby. The trial justice saw Mr. Chamberlain; he saw the witnesses who were permitted and who did testify to similar occurrences. He had better opportunity than we have to judge as to the importance of the excluded evidence to the plaintiff’s case. Having determined that justice demanded that the plaintiff should have another trial, so as to present to another jury the evidence erroneously excluded, we cannot say he erred in granting the order appealed from. It should be affirmed, with $10 costs and the disbursements of the appeal. All concur.

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Bluebook (online)

17 N.Y.S. 433, 43 N.Y. St. Rep. 83, 63 Hun 625, 1892 N.Y. Misc. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pettingill-v-town-of-olean-nysupct-1892.