Raschen v. Norton

The complaint was dismissed at the close of the ■defendant’s case. The evidence offered by the plaintiff established the following state of facts, viz.: The defendant was engaged in laying a pneumatic tube or pipe on Fourth avenue. Trenches were dug in the street for that purpose, and foot-bridges were used in crossing these trenches. On or about January 28, Í898, "the plaintiff walked across one of these foot-bridges. Her skirt was caught upon the nails, which protruded from some plank or board used by defendant in or about the bridge, and a hole was thereby tom in her skirt, and the skirt became, in consequence "thereof, useless to the plaintiff, and she was thereby damaged to the extent of $50. These nails were not sufficiently prominent "to attract the attention of an ordinarily prudent and careful per•son crossing the bridge, and the plaintiff, not seeing the nails, and relying upon a presumption that defendant had provided a suit- ■ able bridge for the public to cross over the said trenches so dug by defendant, walked over the bridge and thus met the injury •of which she complains. The plaintiff is corroborated by two *843ladies, who appear to he perfectly disinterested witnesses, one of whom crossed the bridge just before plaintiff and the other just after her. The witnesses for the defendant are his own employees, Avho have every interest to exculpate themselves from any imputation of negligence. Their testimony should, therefore, have been critically scrutinized and received with caution. See Volkmar v. Manhattan R. Co., 134 N. Y. 422. Their evidence, moreover, is purely of a negative character, as they practically confine themselves to the statement that they did not observe the nails, while it does not satisfactorily appear that they made any very close examination of the bridge in question.

We are of the opinion that the judgment is against the weight of evidence, and should not stand. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.'

Present: Beekman, P. J., Gildersleeve and Giegerich, JJ.

Judgment reversed and new trial ordered, Avith costs to appellant to abide event.