
    Edward Pettingill, Resp’t, v. The Town of Olean, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    Appeal—New trial.
    An order made by the trial judge granting a new trial because of an error in excluding testimony will not be interfered with by the appellate court, although other evidence as to the same fact had been admitted, as the trial judge had better opportunity for determining as to the importance of the excluded testimony.
    Appeal from au order granting a new trial to the plaintiff, entered in the Cattaraugus county clerk’s office July 24, 1891.
    The action was to recover damages for an alleged personal injury claimed to have been sustained by the plaintiff upon a highway in the town of Olean,' caused by his being thrown from a, wagon in which he was riding by reason of one of the wheels of the wagon running into a hole in the highway. The action was tried on the 20tli day of May, 1890, and resulted in a verdict for the defendant.
    Upon a motion being made, by the plaintiff for a new trial before the justice before whom the action was tried, an order was made granting a new trial on the ground of an error of the trial court in excluding evidence offered by the plaintiff.
    
      A. & Q. M Spring, for resp’t; J. É. & M. B. Jewell, for app’lt.
   Lewis, J.

The evidence tended quite clearly to show that the hole in the highway complained of had existed for a number of weeks, that it was deep and dangerous, and that the commissioner of highways of the town had been informed of it for some considerable time before the accident.

The plaintiff offered to prove by Hazen Chamberlain, who resided near the defect in the road, that prior to the day plaintiff was injured other persons using the highway had been injured by driving into the hole.

■ The evidence was excluded, and the order appealed from was granted because of the exclusion of this evidence.

That the evidence offered was competent is conceded by the appellant’s counsel, but he contends that many other witnesses called by the plaintiff were permitted to and did testify to similar accidents happening to others by driving into the same hole, and it being so abundantly established by so many other witnesses, it was error to grant a new trial because of the exclusion of the testimony mentioned, as the respondent could not have been injured thereby. The trial justice saw Mr. Chamberlain; he saw the witnesses who were permitted and who did testify to similar occurrences,

He had better opportunity than we have to judge as to the importance of the excluded evidence to the plaintiff's case.

Having determined that justice demanded that the plaintiff should have another trial so as to present to another jury the evidence erroneously excluded, we cannot say he erred in granting the order appealed from; it should be affirmed, with ten dollars costs and the disbursements of the appeal.

Order appealed from affirmed, with ten dollars costs and disbursements of the appeal

Dwight, P. J., and Macomber, J., concur.  