
    William Knop, Appellant, v. William C. Dechert and Henry Dechert, Jr., Respondents.
    
      Negligence—unverified model of the locus in quo, for what purpose admissible — exception 'to a ruling that evidence might be given, when in fact it was not given, unavailable.
    
    tn an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendants, the plaintiff claimed that he had received, his injury by driving into an excavation in a public highway which the-defendants had negligently allowed to remain open. During the trial the defendants’ counsel produced a model designed to show the situation of the-excavation, stating that it was to be-used simply for the purpose of enabling him to examine a witness. There was no proof of the accuracy of the model, and it was hot offered in evidence and simply served to illustrate upon which side of the excavation a lantern had been placed and the effect of the light-therefrom.
    
      Seld, that the model was admissible for the purpose for which it was used.
    Where an exception is taken to a ruling permitting the introduction of certain evidence, and the record does not show that the evidence was received, an appellate court will not pass upon the validity of the exception.
    Appeal by the plaintiff, William Knop, from a judgment of the Superior Court of Buffalo in favor of the defendants, entered in the office of the clerk of said court on the 27th day of May, 189'5, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May, 1895, denying the plaintiff’s motion for a new trial made upon the minutes, and upon the ground of' newly-discovered evidence.
    
      Herman Hennig, for the appellant.
    
      A. J. Sigman, for the respondents.
   Adams, J.:

This action was brought by the plaintiff to- recover damages by reason of personal injuries which he claims to have received in consequence of his driving, in the night time, into an- excavation which the defendants had -negligently permitted to remain open and unguarded in a. street in the city of Buffalo, which excavation was made by the defendants in order to obtain a sewer connection with a certain house located at the corner of Broadway and Mill street, in that city.

The action was tried at a term of the Superior Court, held in the city of Buffalo, on the 18th day of- March, 1895, and resulted in a verdict in favor of the defendants. A motion was thereafter made, upon the judge’s minutes, for a new trial upon the ground of newly-discovered evidence, which motion was denied.

The plaintiff appealed from both the judgment and the order denying the motion for a new trial, but has apparently abandoned the appeal, so far as the order is concerned, and upon the argument based his contention for. a new trial upon two exceptions which were taken to the admission of evidence by the trial court.

It appears that during the progress of the trial the defendants counsel produced a model, which we infer -from the rather indefinite description thereof contained in the record was designed to represent the ditch in question at the time the accident occurred. When the model was produced it was stated by the counsel that it was to be used simply for the purpose of enabling him to examine a witness by the name of Rosseau. The plaintiff’s counsel objected to the model being used for any purpose, inasmuch as there was no proof of its accuracy, or that it was a correct representation of the ditch at the time of the accident. The court overruled the objection, limiting the use of the model to illustrating what the defendants claimed was the situation of the trench and its surroundings, and the plaintiff’s counsel excepted to this ruling.

It is to be observed that this exhibit was not received in evidence. It was produced in court and it was employed by the defendants counsel during the examination of .this witness in order that the witness might have a better understanding of the questions which were asked him and might answer the same more intelligently.

We do not think that, for this purpose, it was absolutely essential that the defendants should verify the model thus used before proceeding with the examination of the witness in aid of whose evidence it was employed. It frequently happens, during the progress of a trial, that counsel, or even witnesses themselves, refer to some object in the court room or to some rough sketch hastily made, for the purpose of illustrating to the court and jury the bearing of evidence which otherwise might be unintelligible, and we cannot see that this mode of examination is liable to produce injury which either party could complain* of. ’ It certainly did not in the case under consideration.

The model itself was not in- evidence, and consequently proved nothing. So far as we are able to judge from- the meagre record furnished us, it simply served to illustrate upon which side of the ditch a lantern had been placed and the effect of the light therefrom. Had the defendants been prevented from using it, the.same result could, and would, doubtless, have been reached by employing some other means, and in either case the plaintiff might have deprived the evidence of its full value by showing that the illustrating medium was inaccurate.

-. . The . other .exception was taken to the ruling of the court which allowed the defendants to offer in evidence a permit from, the department of public works to make the excavation complained of; but notwithstanding this ruling it does not appear that the defendants availed themselves of it, for the record does not disclose that the permit, was actually received, in evidence. We fail to see, therefore, wherein the plaintiff was harmed by the ruling to which .the exception relates. "

The. judgment and order" appealed from should be affirmed.

All concurred.

"Judgment and".order affirmed, with costs.  