
    Christine Ott, Resp’t, v. The City of Buffalo, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23,1891.)
    
    Municipal corporations—Negligence.
    Plaintiff’s intestate, who had been drinking, but not so much as to inca-
    
      pacitate him from exercising a proper degree of care, while returning home late at night with a friend and carefully feeling his way along a street on account of its dangerous condition, came in contact with a barricade consisting of a matched pine board, which was cross-grained and gave way; precipitating him into a sewer then being constructed, by which he received, injuries resulting in his death. Held, that from these facts it was competent for the jury to draw the inference that the city should have had a more secure protection to pedestrians, or by some means indicated the insufficiency of the board, and that a verdict for the plaintiff would not be disturbed.
    Appeal from a judgment entered in Erie county, on the verdict of a jury at the circuit, May 20, 1891, and also from an order denying the defendant’s motion for a new trial on a case and exceptions ; and, also, denying a motion for a new trial upon the ground of newly discovered evidence.
    
      George M. Browne, for app’lt; C. S. Cosser, for resp’t.
   Macomber, J.

This action is brought to recover damages for personal injuries to the plaintiff’s intestate which resulted in his death.

John Ott, the deceased, was passing along Clinton street in the city of Buffalo late at night on the 11th of May, 1890, and at a point about one hundred and fifty feet from Babcock street he fell into a sewer which was in process of construction by the defendant, and shortly after died from the effect of the fall. The deceased was a very large man, weighing two hundred and fifty pounds, and about six feet eight inches in height At the time mentioned he was accompanied by a friend, whose evidence is in the record, before us. This man testified that shortly after leaving Babcock street and turning into Clinton street the witness was carefully feeling his way alorig on account of the dangerous condition of the sidewalk by reason of its being torn up in places, and called upon the deceased to be careful, because the sidewalk was in a bad condition. The deceased answered that he was all right and followed along about eighteen or twenty feet behind the witness. The deceased, either by tripping, or through some other cause, came in contact with a barricade to the excavation, which consisted of a matched pine board, which was cross-grained, and this gave way, precipitating him into the sewer.

The evidence of the witness who accompanied the deceased at the time mentioned, and of other persons, was sufficient to enable the j ary to say that the guard to the sewer was insufficient by reason of the board being inadequate. The evidence, all taken together, indicated, as the learned justice upon the motion for a new trial has said, that the intestate had fallen against a board that was broken by the fall and he was then precipitated into the sewer. From such fact it was competent for the jury to draw the inference that the city should have had a more secure protection to pedestrians, or by some means indicated to the passer-by the insufficiency of the board which they had in fact placed there.

There is evidence in the case showing that the deceased had been drinking considerable beer during the evening, but it is shown on the other hand that such drinking did not incapacitate him for walking in the ordinary manner, or from exercising that ■degree of 'care which persons of ordinary prudence are accustomed to observe when passing along the streets of cities. The evidence of the person accompanying the deceased shows satisfactorily that there was no want of care by the deceased; but, on the contrary, that he and the witness were giving their attention to the dangers attending the situation.

In respect to the motion for a new trial upon the ground of alleged newly discovered evidence, it is sufficient to say that under the well established practice of the courts the motion was properly denied by the special term, for the reason that no part of the evidence so promised on the new trial could properly be said to be different in character from that which appeared in a greater or less degree upon the trial already had. This newly discovered evidence relates to the habits of the deceased and of the main witness in respect to indulging in intoxicating liquors, and to the condition and strength of the board used as a guard to the sewer. All of the evidence now promised was in the easy reach of the defendant at the time of the trial, and, if it had been adduced, there appears to us no probability that it would have materially affected the verdict.

The judgment and orders appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.  