Toole v. City of Syracuse 222 N.Y. 630

Minnie Toole, Respondent, v. City of Syracuse, Appellant.

Toole v. City of Syracuse, 169 App. Div. 911, affirmed.

(Argued December 18, 1917;

decided January 8, 1918.)

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 18, 1915, reversing a judgment in favor of defendant entered upon a verdict and granting a new-trial in an action to recover damages for injuries sustained by the plaintiff by stumbling over a grade stake set by the defendant on the south side of Hamilton street in Syracuse, between Milton and Willis avenues. Plaintiff alleged that the stake constituted a dangerous obstruction and that the defendant was negligent in setting and allowing it to remain there. The answer put in issue the important allegations of the complaint, set up contributory negligence by plaintiff and alleged that no defect existed to the knowledge of the defendant at the place in question prior to the accident. The case was submitted to the jury on the theory of negligence. The Appellate Division held that the evidence of a witness to the effect that he had never heard of and had rio knowledge of any person’s receiving material injuries because of stumbling or tripping over an engineer’s grade stake was improperly received, and that its reception over plaintiff’s objection and exception under the circumstances of this case presented reversible error.

Carl E. Dorr and Stewart F. Hancock for appellant.

M. E. Driscoll and D. B. Magee for respondent.