
    Victoria Benjamin, Respondent, v. The Village of Tupper Lake, Appellant.
    Third Department,
    December 5, 1905.
    Negligence — injury from defective sidewalk — verdict against weight of evidence ■—failure to prove notice of defect — evidence — when admissions to physician not privileged.
    In an action-to recover for injuries from a fall on a sidewalk by reason of the absence of a step leading into a depression left by the removal of a section of the sidewalk, a verdict is against the weight of evidence when the only evidence of the absence of the step is the testimony of the plaintiff and her husband- who are contradicted by many disinterested witnesses, some of whom were produced by plaintiff, who state that the step" was there both, before, at the time of and after the accident. - - .
    Moreover, such verdict cannot stand in the absence of proof of actual or con- - structive notice to the defendant Y>f the absence of the step. - Although the complaint alleged the absence of barriers ,and lights as negligence; a verdict cannot be sustained on such grounds' when there was no request to present such questions of negligence to the jury and the only question submitted related, to the absence of the step.
    Admissions made by the plaintiff to the physician- who attended her as to the- - manner in which the accident happened are not within the protection of section .834 of the Code of Civil Procedure when' the information was not necessary to enable him to act in his professional capacity.
    Appeal by the defendant, The Village of Tupper Lake, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin'on the 7th day of October, 1904, upon the verdict of a jury for fifty dollars, and also from an order entered in said clerk’s office on the 21st day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      W. S. Wade and John P. Kellas, for the appellant.
    
      Main & Bryant, for the respondent.
   Chester, J.:

The plaintiff’s claim of negligence, as stated in her complaint, is, in substance, that the defendant' suffered a section of a sidewalk upon one of its principal streets to be disconnected from the adjoining walk upon either end thereof and moved out into the highway a short distance without placing a barrier or sign of any kind at the • easterly end of the portion so moved out and disconnected to warn travelers of the disconnection; that the walk was considerably higher than the ground at said end, and that the plaintiff in the night time without any fault of her own stepped off the walk there, fell and was injured thereby.

It is evident that the action was' tried entirely outside of the' pleadings. On the trial the plaintiff claimed that she was injured - because of the absence of a step at the east end of the portion of the walk moved out into the highway where she fell, and not . because of any faulty construction of the walk or step. The plaintiff and her husband were allowed to testify without objection that at the time she fell off the end of the walk there was no step there,, and it was shown that there was a drop there of from twelve to twenty-four inches. The court charged the jury that if the step was in its place at the time of the accident the plaintiff could not recover. This in substance was charged two or three times and no. exception was taken to such charge, and there was no request on the - part of the plaintiff to submit to the jury any other question of the defendant’s negligence. The charge as made, therefore, became by consent of the parties the law of the case, and the jury have found in effect that because of the absence of the step the defendant was guilty of negligence. The plaintiff has had a recovery on that ground alone. On that question the verdict is clearly against the weight of the evidence. The only persons swearing to the absence of the step at the time were the plaintiff and her husband. It was clearly shown that when the walk was moved out .a substantial step was built at the easterly end and securely fastened there, and also . that the step remained as built continuously from the time it was put there, when the walk’was moved out, until long after the accident happened. That the step was there at the time of the' accident wxas shown so clearly by so many disinterested witnesses, some of whom were produced by the plaintiff, that a verdict based upon the interested testimony of the plaintiff and her husband to the contrary cannot be sustained. "

Again,.there'was no evidence pf either actual or constructive notice to the defendant of the absence of the step. Assuming for the argument that the testimony of the plaintiff and her husband as to the absence of the step was true, that testimony related simply to the time of the accident, and there was no testimony that the defendant or any of its,officers knew it was absent and no testimony of its absence at any other time prior to that moment. ■ There-was nothing, therefore, upon, which the jury could find that the condi-’ tion claimed by the plaintiff had existed so long that the defendant was chargeable with notice thereof.

The respondent -tries to save her verdict because there was proof of the absence, of a barrier at the east end of the walk and of a light at that point, but the answer to that-contention is that she has consented to her case going to the jury upon ah altogether different theory with- no request to the court to present that phase of the. case to the jury for their determination.

There was also an error in excluding evidence that'will require a new trial. A physician who had treated the plaintiff for the injury^ was called, by the defendant and testified that he had a. conversation with her as to' the manner in which, this accident occurred. He was then asked : “ What did slie tell you as to that % ” This was objected to-as incompetent and immaterial. In reply to questions by the court the witness stated that “ this talk was while I was making an examination of her case in order to prescribe for her and,asa part of my examination.” The court sustained the objection and the defendant excepted. The witness nowhere stated that it was necessary for him to know how the accident happened in.order to enable Mm to act for the plaintiff in a professional capacity, and it is apparent here that it was not necessary for him to know how the accident happened in order to-enable him so to act. It was sufficient for that purpose that he knew or was informed of the-character of the injuries received a,nd not as to how they were received. If the plaintiff in such talk made admissions to the physician as to the manner in which the accident happened, it not appearing that the information so acquired was necessary to enable him to act in that capacity, such admissions were not protected by section 834 of the" Code, of Civil Procedure. (Green v. Met. St. Ry. Co., 171 N. Y. 201.) ,

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  