De Forest v. City of Utica 69 N.Y. 614

Harriet De Forest, Respondent, v. The City of Utica, Appellant.

(Submitted April 4, 1877;

decided April 17, 1877.)

This action was brought to recover damages for injuries from a fall alleged to have been caused through defendant’s neglect to keep one of its sidewalks in repair.

*615The accident occurred Saturday evening, June 5th, 1875. The court admitted evidence showing the condition of the walk on the next Monday. Held, no error.

After the witness had testified to the bad condition of the sidewalk in the summer of 1874, a year before the accident, he was permitted to testify that in May before new pieces of plank were put in, and that the walk was in better condition than it was the year before. Held competent, and that it clearly could not have harmed defendant.

The plaintiff testified that at the time of the accident she was pregnant, and that when she fell she felt as if her “ inwards turned upside down.” A physician testified that the accident might have caused mal-position of the child in the womb, At her confinement, mal-position was found to exist. This question was then asked the physician: “ Did the mal-position of the child cause the mother any more pain at childbirth than if the child was in a natural position?” This was objected to, and answer received under objection. The witness answered: “ Yes, and that it was necessary to use instruments for the delivery.” Held, that the evidence was competent; that it was for the jury to determine whether the mal-position was the result of the accident; and, if it Avas, to take it into consideration in estimating the damages, as they would any other pain and suffering to which plaintiff was subjected by the accident.

O. Arthur White, for appellant.

S. M. Lindsley, for respondent.