
    Elizabeth Trope, Resp’t, v. The Saratoga Association for Improvement of Breed of Horses, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1890.)
    
    Venue—Change fob convenience of witnesses.
    In an action for injuries caused by a fall on a stairway of defendants’ grand stand, where the complaint alleged that the fall was caused by the abseuce of a railing rendered necessary by the fact of the stairway being covered and lengthy, the defendant has the right to establish the method of construction of the stairway, the degree of obscuration of light, the fact that it had been constantly used without .accident and that it was not in possession of defendant at the time of the accident, by more than one witness, and where such witnesses are numerous the place of trial may properly be changed to the county where the accident occurred, although plaintiff’s witnesses may be substantially equal in number.
    Appeal from order denying motion to change place of trial.
    
      H. Russell, for app’lt; Joseph A. Shoudy, for resp’t
   Van Brunt, P. J.

This action was brought in November, 1889, to recover damages for personal injuries claimed to have been sustained on the 12th of August, 1886, by falling down the stairs leading to the grand stand on the Saratoga race track.

• It is alleged in the complaint that the property was in the possession of the defendant at the time of the accident, and that the stairs were carelessly and negligently constructed, in that being covered and lengthy the light was to a great degree obscured so as tó make it difficult to see clearly on entering, and rendering a railing or other means of support indispensable to the safety of those descending the same, and because of the want of such railing the plaintiff suffered her injuries. The defendant claimed that it would be necessary for it to produce a large number of witnesses to prove that the stairs were in good repair and properly constructed. The plaintiff’s answer to the application seems to have been that these witnesses were not necessary because the want of a railing is the only defect alleged; and it is upon this ground that the learned court seems to have denied the application.

This view of the allegations of the complaint seems to us to be erroneous. Not only the methods of construction of these stairs must be the subject of investigation, but the results arising from such construction, because the allegation of the complaint is that such railing was rendered necessary because the stairways were covered and so lengthy that they to a great degree obscured the light.

How great this obscuration was the defendant had the right to establish by the evidence of more than one witness, and could not be restricted by the rule of the court in that regard to one witness. Neither could it be restricted to the evidence of one witness in regard to the method of construction. It had a right to establish by such number of witnesses as would carry weight to the jury what the particular facts relating to such construction were.

There was another class of proof which it might have the right to enter into, and that was, that for a period of ten years before this accident thousands of people had used these stairs without falling, and such an accident could not reasonably have been anticipated. A fact of this description could not be established to the satisfaction of a jury by a single witness, and it might have the right to show this fact. It is no answer to such a claim that such evidence is entirely immaterial, unless it was patent, which it is n,ot.

The defendant desired to establish, also, the fact that it was not in possession of the premises at the time of the accident, and therefore not responsible therefor. All these branches of defense were such as the defendant had a right to claim to maize use of, and they required the testimony of various and 'divers witnesses.

The affidavits upon the part of the plaintiff show that certain witnesses were to be examined upon her behalf. But it is apparent that the testimony which could be given by some of these witnesses was of the most trivial character, ahd that there is the same attempt upon the part of the plaintiff to amplify the number of witnesses which the defendant has also indulged in. But the claims made upon the part of the defendant as to the number and necessity of the witnesses seem to be much better founded than those of the plaintiff.

The accident occurred in Saratoga county, which appears to be the defendant’s place of residence, and applying the rule that where the number of necessary and material witnesses is substantially equal, the place where the transaction occurred ought generally to control, we think that the order should be reversed, with ten dollars costs and disbursements, and the place of trial changed to .Saratoga county.

Bartlett, J., concurs.  