
    Marcellus K. Warner, Respondent, v. The Village of Randolph, Appellant.
    
      Negligence — wallting off a highway at the point of its continuance by a bridge — change of the judge as to the liability of the milage—photographs as evidence.
    
    Where, in an action brought against a village by a person who, at night, and in a place not lighted in an.y manner, walked off a platform, adjoining a highway, at a point (unguarded by a railing) between the building, in front of which the platform was constructed, arid a bridge maintained by the village, there is a conflict of evidence as to whether the point at which the plaintiff fell was near the building and outside the highway, or near the bridge and within the line of the highway, a charge by the court to the jury to the effect that only in the latter case could the plaintiff recover, constitutes a fair' statement of the liability of the village.
    'Photographs, which are stated to present a fair representation of the general features of the scene of an accident, are admissible as evidence.
    Appeal by the defendant, The Village of Randolph, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 10th day of June, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of June, 1896, denying' the defendant’s motion for a new trial made upon' the minutes. . .
    This action was brought to recover damages for. personal injuries alleged to have been sustained by the plaintiff owing to the negligence of the defendant. .The jury rendered a verdict in favor of the plaintiff for $1,000.
    
      A. Wentworth and Premie W. Stevens, for the appellant.
    
      Thomas IT. Towel and W. S. Thrasher, for the respondent.
   Hardin, P. J.:

On the 19th day of April, 1893, about eleven p: m., the plaintiff arrived, by rail, at the depot in the village of the defendant. The night was dark and no street lights were maintained by the defendant at or near the bridge over the Conewango creek where the accident occurred. The plaintiff carried an umbrella and'a small bundle of soiled linen; he was accustomed to the location of the street, and usually passed along the south side thereof. On this occasion when he reached Main street from the depot he passed over to the north side of Main street, near Depot street, in order to derive some benefit from a lantern which was being carried by another man just ahead of him, who pursued Main street until he came to Church street, some little distance from the bridge. Plaintiff passed along on the north sidewalk until he came near the bridge, and then, knowing that the walk deflected some to" the right, the plaintiff attempted to make the turn and unfortunately walked off the platform, near the bridge* and apparently so near to it that his umbrella caught on the bridge railing'and was torn. He fell down a distance of some eight feet* striking his right hip upon a stone, near the sewer pipe. .He testifies that he fell between the sewer pipe and the bridge, and details the exploits necessary to enable him to get back into the street and to reach the Brooklyn Hotel, nearly opposite the point where he felL He says: “ I walked along quite briskly, and walked down to or near to the bridge, and supposed I was turning to the right to go on to the bridge, and the first thing I knew I walked right off, close to-the bridge, .down into the creek or down into the place there; I walked off and fell; I struck on my right hip; I hit a large stone ; I fell probably eight feet, or such a matter, and near the bridge; I put my left hand on to a- sewer pipe that was there, and my umbrella, caught on to the corner of the railing to the bridge; it didn’t take the umbrella out of my.hand, but tore it a little; from this I know that I fell at a point between the sewer pipe and the bridge; I struck on my right hip and right leg. ■* * * In a moment I undertook to get out of there; rolled right over that pipe and tried to get up.”

In the course of his cross-examination he says: “ The bridge was on my right-hand side as I went down, and on my left-hand side was the building. The distance between the bridge and building, I should judge, was ten or eleven feet. Between the bridge and the building there was a platform about seven feet and some inches above the ground below;; underneath the platform was- this sewen pipe. * * * I went down between the sewer pipe and the bridge, so that the sewer pipe was on my left hand and the bridge on my right hand as I went down* * * "x" Aa I approached the-rise I slackened up. At the time I was trying to observe the bridge it was so dark I couldn’t really see it, bearing to the right.”

No witness was present when the plaintiff. fell, and none observed his course or the circumstances attending his fall. However, several witnesses were called in behalf -of the defendant who gave evidence as to their observations of the place where the fall took place, and detailed certain facts tending to indicate that the plaintiff was mistaken when he. said he fell between the bridge and sewer pipe, and tending to indicate that he fell between the sewer pipe and the building; but as none of them saw him fall or while he was down, their evidence is, at most, circumstantial. Upon the evidence, therefore, a question of fact was presented for the jury to determine as tó where the plaintiff fell and whether his version thereof was correct or not; and it was not error to submit that question to the jury upon the conflicting evidence that related to it.

In Wright v. Saunders (65 Barb. 214; S. C. affd., 3 Keyes, 323) it appeared that there were four witnesses against one, and the court held that it was the right of a referee to believe the one and disbelieve the four.

We think the language used by Danforth, J., in Archer v. N. Y., N. H. & H. R. R. Co. (106 N. Y. 602) is appropriate to the question presented. ■ He said: It is enough for us that there was sufficient evidence to present a case with two sides, and consequently sufficient for the jury to pass upon, and we see no reason to suppose they were not guided in their decisión by a conscientious judgment and belief fairly formed in view. of all the circumstances of the ■case.”

We think that the evidence .presented a question of fact which the trial, court properly submitted to the jury in respect to whether the plaintiff was free from contributory negligence. The court, in very clear and positive language, instructed the jury that the burden of proof was upon the plaintiff, and that if they found the version given by the plaintiff to be correct, then they might find that the plaintiff was free from contributory negligence. On the other hand, in equally clear and positive language, he instructed the jury that if they found that he fell at a point between the sewer pipe and the building, he could not recover. As we have examined the evidence with a view of determining whether the verdict was in accordance with the evidence, we are inclined to say after such examination that the trial judge was not only justified in submitting, but that it was his duty, to submit the ease, in that aspect, to the jury; and in examining the evidence we have found no occasion to disturb the verdict so far as it finds that the plaintiff was free from contributory negligence.

(2) It appears by the evidence that no railing was maintained between the bridge and the building at the time the plaintiff walked off and received the injuries of which he complains. At one time there was a railing at the point. The evidence that there was no railing there on the occasion of the injury was clear and positive, and there was evidence that there had been no railing there for the six weeks preceding the injury. The testimony of Nora Cook and the witnesses Butler, Thorp, Brown and Winkley was such that the question was properly for the jury to determine how long the railing had been absent, and if for the period of time mentioned in their evidence, then it was for the jury to determine whether the absence had been of sufficient length of time to warrant the finding that there was constructive notice to the defendant’s officers of its absence. In submitting that question to the jury, we think that the court was entirely correct in the rule of law laid down-in that regard, notwithstanding the fact that the defendant gave evidence tending to contradict the evidence offered by the plaintiff. (Wilcox v. N. Y., L. E. & W. R. R. Co., 88 Hun, 263; Chisholm v. State, 141 N. Y. 246; Miller v. N. Y. C. & H. R. R. R. Co., 31 N. Y. Supp. 322; S. C. affd., 146 N. Y. 367.)

There was a conflict in the evidence as to whether the plaintiff fell at a point outside the highway, and the evidence warranted the jury in finding that the point where the plaintiff fell was within the highway. The judge pointedly instructed the jury as follows: “ I charge that to you explicitly and plainly as a proposition, of law, that before the plaintiff can recover in this action you must be satisfied from the evidence that he fell off substantially where he claims he did, between .the sewer pipe and the bridge.” And again he repeated the converse of the proposition in the following language : That if he did fall off, did meet with the injuries and accident that he now complains of by falling between the sewer pipe and the building, that he cannot recover.’’

In Maxim v. Town of Champion (50 Hun, 88 ; S. C. affd., 119 N. Y. 626) I had occasion to discuss the rules of law applicable to a case somewhat similar to the one before us, and to quote the language of. the Court of Appeals in Jewhurst v. City of Syracuse (108 N. Y. 898) where it was held, viz.: “ Where there is no visible - boundary to the line of a city street, and a portion of the roadway traveled on is so- near the line, although really outside of the street, as to induce the belief in any one passing upon the stréet and exercising reasonable care that he is within the line thereof, if such portion is for any reason' rendered dangerous for .travel, and the city has notice thereof, and such danger can be remedied by the exercise of reasonable care, either by the erection of a guard or railing along the line of the street, or in some other way, and the city neglects to do this, it is liable to one injured because of such defect’ while, traveling, npon such portion of the roadway, if he himself is free from any contributory negligénce.”

Upon the facts developed by the testimony in this case, we think that the question of the defendant’s.negligence was fairly dealt with by the trial judge, that the jury have found in accordance with the instructions given by him, and that the defendant was negligent in .leaving the street in a dangerous condition, and their verdict in that ■ respect is entirely satisfactory. "

The appellant’s learned counsel calls our attention to Kaare v. T. S. & I. Co. (139 N. Y. 369). We think the case in hand differs essentially-from that one. There the'depression or defect was so slight that-it would not “indicate to one of ordinary prudence the appearance of danger.” In that case the plaintiff was the sole witness on his own behalf as to all the essential facts relating to the accident, and. as to them- he was conf ronted by several witnesses contradicting in a most positive manner “ all the material facts stated by him,” and it was said : “ There does not appear to be any possible-chance of mistake. Either- he or they testified falsely. * * * Indeed, their version seems to be more probable than that given by ' the defendant. The plaintiff waited more than two years and a half before he commenced his action, and then did not allege in his complaint the defect in the plank, now the main ground of com-' plaint against the defendant.. The plaintiff testified through an interpreter, and hence his manner of testifying and his appearance could not have been of' much aid to the judge in weighing his evidence.” And the learned judge who delivered the opinion in that case added, viz.: “ Where there is a vast preponderance in the evidence in favor of the defendant, and the defense is supported by numerous witnesses, apparently entitled to credit, and the plaintiff’s case stands upon his own evidence, either unsupported ..or slightly supported, the General Term should exercise an indej>endent judgment and give the defendant appealing to it the full benefit which the law, by the right of appeal, intends he should have.” Those remarks were made in adverting to the circumstance that the General Term, in that case, had placed considerable confidence upon the opinion of the'trial judge in refusing to grant a new trial.

While we have great confidence in the opinion of the learned trial judge who refused the motion for a new trial in this case, we have not rested our conclusion thereon, but have examined the evidence and circumstances that were before the jury, and we are of the opinion that the verdict was justified.

We think the case in'hand differs essentially from Baker v. Sutton (11 App. Div. 271). In that case, the learned judge delivering the opinion said: “ It is impossible to read all the evidence without concluding that the facts were such as the defendants’ witnesses state them to have been. The preponderance of evidence against the conclusion which the jury have reached is so very great that it becomes our duty to disregard it and to reverse the judgment entered thereon.”

As we have already stated, an examination of the evidence in the appeal book before us leaves upon our mind the impression that the verdict of the jury is in accordance with the weight, of the evidence.

Nor does Hope v. Fall Brook Coal Company (3 App. Div. 70) aid the appellant. In that case the verdict of the jury was criticised, and the learned judge who delivered the opinion, after considering the evidence, stated that the verdict “ must necessarily have been the result of misconception, con jecture or surmise.” No such criticism legitimately applies to the case in hand.

Appellant calls our attention to Veeder v. Village of Little Falls (100 N. Y. 343). We think it does not aid the contention of the appellant. In that case the retaining wall was on State land and the village had no legal right to put a railing on it, “ and consequently there was no legal duty on the village to erect one thereon,” and the error that was committed at the trial consisted in the court’s refusing to charge “ that if the jury should find that a railing or guard north of the' wall, outside of the State property, would be dangerous, to the traveling public, the village authorities were not negligent in failing to build a guard there.” The case is quite unlike the one in hand.

Nor does Murphy v. City of Brooklyn (118 N. Y. 575) aid the contention of the appellant, as in that case it appeared that the city did not owe the plaintiff any duty, of protection to guard the hole, “ as it was not so close to the street as to make the latter unsafe.”

We think the admission of the photographs presented no prejudicial error. There was some evidence tending to show that they presented a fair representation of the premises where the injuries were received, and when photographs are shown to present a fair representation of the general features of the situation, their reception in evidence is permissible. (Cowley v. The People, 83 N. Y. 464; People v. Buddensieck, 103 id. 487; Archer v. N. Y., N. H. & H. R. R. Co., 106 id. 589; Alberti v. N. Y., L. E. & W. R. R. Co., 118 id. 88.) We think the defendant’s general objection to them was properly overruled. (Cowley v. The People, 83 N. Y. 464.) Besides, it appeared the. defendant put in evidence' photographs taken at about the same time, of the same locality, and taken by the same photographer.

We think the case was fairly presented by the trial judge to the jury, and that no errors of law were committed during the progress of the trial and that the verdict should be sustained.

All concurred.

Judgment and order affirmed, with' costs. 
      
       Plaintiff.— [Rep.
     