
    Samuel McRicard, respondent, v. George C. Flint et al. appellants.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed June 7,1886.)
    
    •1. Practice—Appeal—What mat be reviewed.
    Where a motion was made for a new trial on the judge’s minutes and denied, no exceptions appearing in the case, and no order ever having been entered, denying the new trial, although the notice of appeal purparts to be both from the judgment and order, it brings up for review the judgment only.
    
      2. Action eob personal injury—Evidence—Competency op.
    In an action to recover damages for a personal injury by falling down m elevator shaft on the premises of defendant, the defendant introduced diagrams and photographs of the premises in evidence: Held, that testimony by plaintiff and his witnesses as to changes made in the premises after the accident, and before the diagrams, etc., were taken was competent and p oper to show the inaccuracies of the diagrams, etc., and the true state of the building at the time of the accident.
    | Appeal from a judgment entered on a verdict of a jury, in favor of the plaintiff, for $2,651.38 damages and costs.
   Bookstaver, J.

A motion was made for a new trial on the minutes and denied. No exception appears in the case, and no order was ever entered denying the new trial, so, although the notice of appeal purports to be both from the judgment and order, it brings up for review the judgment only. The Third Avenue R. R. Co. v. Ebling, 100 N. Y., 98; Mathews v. Mayberg, 63 id. 656. But even if it did, in the view we take on this case, we could not reverse the judgment on the facts.

The action was brought to recover damages for a personal injury suffered by the plaintiff, by falling down an elevator shaft, on the premises of the defendants, in West Fourteenth street, in this city. The action has been twice tried. On the first, the complaint was dismissed at the close of plaintiff’s case. From this, an appeal was taken to the general term of this court. It was then decided that, as matter of law, the defendants were guilty of negligence, in not having complied with the statutory requirements as to the construction, protection and maintenance of their elevator; but the dismissal was sustained, because this court thought the plaintiff was also guilty of negligence. From tms judgment the plaintiff appealed to the court of appeals, which reversed the judgment on the ground that the question of plaintifi’s negligence should have been submitted to the jury. 97 N. Y., 641.

A review of the evidence shows that the facts in plaintiff’s favor are certainly as strong on this trial as the former, and under the decision of the court of appeals the learned judge below could not do otherwise than submit the case to the jury.

The defendants excepted to so much of the charge as states that a failure to comply with the provisions of the law of 1874 is prima facie evidence of negligence. The portion of the charge excepted to we do not think erroneous. The general term of this court had, in efiect, decided this on the former appeal to it; and what immediately precedes and follows the portion to which our attention has been called fairly submitted the question to the jury and protected defendant’s interests.

Although the defendants’ appeal does not properly bring up for review the exceptions to the admission and exclusion of evidence, we will briefly state our opinion thereon. The defendants introduced diagrams and photographs of the premises in evidence. Plaintiff and one of his witnesses testified to changes made in the premises after the accident, and before the diagrams, etc., were taken, without objection; and afterwards moved to strike out the evidence, which was denied. We think there was no error in this. The evidence was proper to show the inaccuracies of the diagrams, etc., and the true state of the building at the time of the accident.

One of the defendants was asked the following: “Q. If the westerly door were open a half circle or more, or a little less, is it possible for one coming from the back room approaching that door way, not to see clearly and plainly that there is an elevator shaft ?”

This was objected to and properly excluded, as it called for an opinion, and was one of the conclusions of fact for the jury to find from the facts of the case.

Section 16 of chapter 625, Laws of 1871, as amended by section 5 of chapter 547, Laws of 1874, were properly admitted in evidence. This court, at general term, held they Iwere applicable in this case.

The judgment should be affirmed, with costs.

Allen, J., concurring.  