McMahon v. Town of Salem

Merwin, J.: On the 12th of June, 1895, while the plaintiff with a team and wagon was crossing a bridge over Black creek, in the town of Salem, a portion of the bridge gave way, and the plaintiff, with his team and wagon, was precipitated to the bottom of the creek. For the injuries then received the plaintiff seeks in this action to recover damages from the town, upon 'the ground that the damages were sustained by reason of a defect in the bridge, existing because of the neglect of the commissioner- of highways of the town. (Highway Law [Laws of 1890, chap. 568], § 16.) The recovery is upon that basis. The appellant claims that in the course of the trial divers errors were committed by the trial court to the prejudice of the appellant, by reason of which there should be a new trial.. The defendant offered to prove that, at' the time of the accident, the commissioner of highways had no funds in his hands applicable to the repair of the bridge, and that, for át least a month- before the accident,, all the moneys in his hands for highway purposes'had been expended in making repairs and' improvements which he had previously determined to be necessary. This was ruled out upon the ground that it was an affirmative defense, and was-not pleaded in the answer. In the complaint it was alleged that the commissioner- of highways had the necessary funds and the means to procure such funds, to repair the bridge. There was a general denial in the answer. It was, however, held that the proof was not admissible, and it is claimed that the case of Whitlock v. Town of Brighton (2 App. Div. 23) supports this ruling. The defendant asked leave to amend the answer, but this was refused. In order to make the defense as to funds complete, it must appear not only that there was a lack of funds, but an inability, by the exercise of reasonable diligence, to obtain them. (Clapper v. Town of Waterford, 131 N. Y. 389 ; Whitlock v. Town of Brighton, supra; Young v. Town of Macomb, 11 App. Div. 480.) Had the defendant offered to show [3] not only the lack of funds, but the lack of means to obtain them, it may be that an amendment of the answer, if necessary, should have been allowed. The offer being too narrow, the defendant does hot show injury from the rulings. It may be observed that by the statute, as then existing (Highway Law, §10, as amended by chap. 606, Laws of 1895), it is provided that, if at any time a bridge shall become unsafe, the commissioners of highways of the town may, with the consent of the town board, cause the same to be immediately repaired, although - the expenditure of money required may. exceed the sum" raised for such purposes; and provision is made for the audit and collection of the expense. It is claimed by the appellant that material error was committed in the exclusion of evidence offered by the defendant-by way of com tradiction of the evidence of Dr. C. B. Lambert, called as a witness by the plaintiff. Dr. Lambert was his attending physician.- " He testifies that he attended the plaintiff as his physician from June 12, 1895, the date of the injury, to January 16, 1896; that during that time he treated him for the injuries he.had received, gave him treatment as he thought was right, and that in his opinion his attendance during that time and up to January was necessary ; that after that he sent him medicine two or three times, and gave him some incidental treatment when he was attending a member of his‘family; that when he went to see him he found him suffering considerable pain from a number of injuries that he discovered on his back in the dorsal and lumbar region, and from injuries that he observed to the muscles of the whole chest and abdomen, and that his urine appeared bloody. On his cross-examination he stated the frequency of his visits and what injuries he treated him for. He was then asked whether upon a certain occasion in August, 1895, he did not state to Dr. Russell and Dr. Maguire that the plaintiff had recovered from the injuries which he had received by the fall of the bridge. To this the witness replied that he did not. He was also asked whether, on the same occasion, he did not state to the same persons that there was nothing the matter with the plaintiff. He replied, that he did not. The defendant then called Drs. Russell and Maguire and offered- to prove by them that- Dr. Lambert did make the statements which he denied making. This was excluded. . One of the most material issues in the case whs whether or not [4] the injuries of the plaintiff were of a permanent character. Dr. Lambert had better means of knowing the character and extent of those injuries than any other physician. His evidence tended to show that they were serious and permanent. His visits were frequent after August, 1895,. and he testified that his attendance up to January, 1896, was necessary. The condition of the plaintiff as described by the witness, -as well as his treatment of him, was inconsistent with the idea that on the ninth of August, the date- of -the interview with Drs. Russell and Maguire, the plaintiff had recovered, or that nothing was then the matter with him." The contradictory evidence that was offered 1, we think, have been received. (Sloan v. N. Y. C. R. R. Co., 45 N. Y. 125 ; Kinner v. D. & H. C. Co., 20 J. & S., 162.) In the Kinne-r case, Judge Sedgwick says at page 165, “ The rule that the declarations of a witness as to matters as to which he has testified, they being material-to the issues, can be shown to affect his credibility • after he has denied that he has made them, is not confined to the immediate things he testified to, but extends to circumstances within his.knowledge, or which it may be argued to the jury are.withi-n his knowledge,-inconsistent with the things he has testified to, "or which would call for a modification of the testimony.” The evidence thus excluded was quite material to the issue and its exclusion is good ground for reversal. (Patchin v. Aston Mutual Ins. Co., 13 N. Y. 268.) All concurred;. Herrick, J., concurred in result as stated in opinion read by him.