Susan Provost, Respondent, against The Mayor, Aldermen, and Commonalty of the City of New York, Appellants

Susan Provost, Respondent, against The Mayor, Aldermen, and Commonalty of the City of New York, Appellants. (Decided December 3d, 1888.) In an action for injuries received from a fall on a sidewalk in defendant city, there was evidence from which the jury could infer that there had been a thick coating of ice for a long time where the plaintiff fell, and that such coating existed in that particular place when other side- ■ walks in the neighborhood had been clear; and that, immediately after the accident, the ice in question was cleared off and the condition of the sidewalk under it greatly improved. Held, that a verdict for plaintiff should not be set aside. Where irrelevant testimony is not excepted to at the time it is given, the granting of a motion to strike it out is always in the discretion of the court, and a refusal to grant such motion is not reversible error. A party cannot introduce in evidence inconsistent and contradictory declarations made by a witness for his adversary out of court, to which such witness’s attention has not been specially directed when on the stand. Appeal from a judgment of this court entered upon the verdict o.f a jury and from an order denying a motion for a new trial. The action was brought to recover damages for injuries to plaintiff received by falling upon a sidewalk in the defendant city, alleged to have been caused by its slippery condition, due.to an accumulation of snow and ice thereon. Henry B. Twombly, for appellant. Nelson Cross, for respondent. [MAJORITY — Larremore, Ch. J.] Larremore, Ch. J. The charge of the learned judge who tried, this case is omitted from the case on appeal. We must therefore presume that the issues were.fully and fairly presented to the jury upon the evidence. The principal contention upon this appeal is, that the plaintiff did not establish a cause of action, and that the complaint should have been dismissed. But we think the trial judge correctly administered the law, as it exists at present in this state, on the subject of accidents to pedestrians .occasioned by slippery sidewalks. There .is evidence from which the jury could infer that there had been a thick coating of ice for a long time where the plaintiff fell; that such coating existed in that particular place, and that other sidewalks in the neighborhood had been cleared; that said ice-coating was therefore not an incident common to all the sidewalks in the city ; and, furthermore, that the ice in question was cleared off and the condition of the sidewalk under it greatly improved immediately after the accident. We do not say that the evidence necessarily establishes these points, and that no other conclusions could be drawn from it, for there is grave contradiction and dispute as to all of them. But if the jury believed plaintiff’s witnesses, they were authorized to find the facts as above stated, and the case therefore falls within the ruling in Todd v. City of Troy ( 61 N. Y. 506), and must be distinguished from Kinney v. City of Troy (108 N. Y. 567) and Kaveney v. City of Troy (108 N. Y. 571). In Kinney v. City of Troy ( supra), the earlier case of Todd v. City of Troy (supra) is referred to and distinguished and its authority re-stated. In such earlier case the proposition is expressly laid down that it is the duty of municipal authorities to see that the sidewalks of a city are kept reasonably clear of ice and snow, and that when they permit an accumulation thereof to remain an unreasonable length of time, to the danger of travelers, the corporation is chargeable with negligence, without proof of actual notice. We do not think that any error necessitating a reversal occurred upon the trial. Counsel for appellant claims that the court erred in allowing evidence to be introduced of injuries other than those to plaintiff’s arm, because only such injuries were set up in the complaint.' But it does not appear that any evidence of other injuries was admitted after defendant’s counsel objected to the same. It is true that the plaintiff had testified that the fall hurt her hip and made her lame. This testimony was given without objection. Subsequently counsel for defendants moved to strike it out. A motion of this kind is always in the discretion of the court, and the refusal to grant it is not error. The court did intimate an intention to receive all the evidence, of all the injuries which plaintiff suffered, but as no testimony was actually received subsequently which related to anything but the injuries to the arm, the exception on this point would have no practical force, even if it were theoretically well taken. It is difficult to perceive upon what counsel for appellant bases his claim that the court erred in refusing to admit testimony of contradictory statements that the witness Walker had made previous to the trial. The question was asked this witness on his direct examination whether he did not say, in the presence of the witnesses Moore, Lake, and Ryan, “ the woman I was boarding with is going to bring a suit against the city, but she is a skin, and has got no case, and there was no ice where she fell, and I boarded in the house and know.” He denied having ever uttered these words, and quite properly the three other witnesses referred to, when they were examined on behalf of defendant, were allowed to contradict him on this point; and, as it appears, this testimony of theirs was taken without objection. Defendant had the undoubted right to prove such contradiction for the sake of discrediting plaintiff’s witness with the jury, and must have received the full benefit of the same. The proper foundation for this particular contradiction had been laid by calling Walker’s attention to the alleged conversation in his cross-examination and stating circumstantially the place where it occurred and the persons with whom it was had. But the court correctly held that the defendant could not introduce evidence of inconsistent and contradictory declarations made by the witness out of court to which His attention had not been especially directed when he was on the stand. There are no other exceptions in the case which in our judgment call for discussion or require notice, and the judgment appealed from should be affirmed, with costs. Bookstaver, J., concurred. Judgment affirmed, with costs. The judgment entered on this decision was affirmed on appeal to the Court of Appeals, October 29th, 1889 ( see 117 N. Y. 626.).