Hanselman v. Broad

Jenks, J.: The plaintiff was a tenant in the defendant’s tenement' house. When she-was hanging, washed clothes on-a clothes- line that ran from the window to" a clothes pole in the yard, the pole fell over arid- struck- her. She complains of the “ carelessness and negligence of the said defendant -in maintaining the' said clothes pole in - a defective and dangerous condition, liable to fall, in erecting the same improperly, and in permitting the same to become decayed and weak.” The, plaintiff, showed by a witness, who was a pile-- •' driver by trade,'that a pole left in the ground- rots at the top of the • earth, right at the- earth line. Speaking -from observation of a piece of spruce which he had' taken from the yard,, he. testified that it had ‘ “ rotted in over an inch,” He testified that at the earth line the stump was between eight and ten iridies in diameter, and ’that the ' rot had gone in an inch. He further testified that the tests for rot-, ' tenriess were easy and could.be made by axe or'gimlet. It appeared . that the pole had been set up for six years. I think.that the rule-of liability is well stated in Alperin v. Earle (55 Hun, 211)..by Barrett, j.: -“The rules applicable. to public halls and stairways in such buildings govern -here. The landlord is responsible for injuries to his tenants resulting from the dangerous condition of those' parts of the building which he reserves for the common Use and over which lie. retains control, but only when he . has b.een guilty of actual negligence with regard thereto. To bring him 'within this rule it must appear,’ as was said in Henkel v. Murr (31 Hun, 30), ‘ that with some notice of the condition of things, or' Under some circumstances equivalent to notice, such as an unreason-’ able omission to ascertain the condition, he had failed to make the necessary repairs or changes called for By the condition or exigency.’ [449] This is the fair rule.” The learned trial court submitted to the jury the question whether there were circumstances “ which ought to have waked up” the defendant. The circumstances were those attendant upon "the previous fall of another clothes pole. The appellant insists that the testimony thereof was erroneously admitted over her objection, and this is the principal question of her appeal. It appeared that the defendant owned two tenement houses side by side, built at the same time and alike, and that two poles were set out at the same time, each in one'of the yards. There is evidence that pole No. 1 fell down, shortly before the time of this, accident; that it was “ just like” pole No. 2, and was of the same size, and that it broke off at the base, just like pole No. 2. The precise question is whether the fall of that pole, without .any apparent outside agency for its fall, might naturally call the attention of the owner, in the exercise of due care, to the danger of a fall of No. 2. I think that such evidence was competent on the question of notice, and it was upon this ground that it Was admitted, and submitted. (Brady v, M. R. Co., 127 N. Y. 46, 49 ; Ster v. Tuety, 45 Hun, 49 ; Elliott Ev. § 185 ; Cavanagh v. O'Neill, 27 App. Div. 49.) The criterion is the.similarity of conditions (Gustafson v. Young, 91 App. Div. 433), and “ the similarity that is required is, in short, á similarity in essential circumstances, or, .as it is usually expressed, a substantial similarity, i. e., a similarity in such circumstances or conditions as might supposably affect the result in question.” (1 Wig. Ev. § 442.) In view of the similarity in size and appearance, in age, in use, in location, in the fall, and the physical conditions, I think that the court did not err in the ruling or the submission. The plaintiff’s daughter, upon her cross-examination, had testified that she had not stated to a representative of the defendant that her mother’s false teeth had been broken by the accident and that she wanted twenty-five dollars to pay for them. The defendant thereafter called the representative and asked him whether he had any conversation with the daughter relative to the injuries • to her mother. This was objected' to as incompetent, immaterial, irrelevant and improper in form. The court ruled, “ That may stand simply as introductory,” under exception-, and the witness answered [450] that he did have such conversation. Then the counsel asked : “ Q. Did you ask Mrs. Lotz (the daughter) — did Mrs. Lotz tell yon wliat injuries her mother had sustained ? [Objected to ; objection sustained.] Q. Did Mrs. Lotz say anything to- you about her mother’s false teeth having been injured? [Objected to; objection sustained ; defendant excepts.] ’’ The witness was called to contradict. The question was not in accord with the general rule which is stated by Chuech, Oh. J., for the court in Sloan v. New York Central R. R. Co. (45 N. Y. 125): “To lay the foundation.for contradiction, it is necessary to ask the witness specifically whether he has made such statements; and the usual and most accurate mode of examining the contradicting witness, is to ask the precise question put to the principal witness. Otherwise, hearsay evidence, not strictly contradictory, might be introduced, to the injury of the parties, and in violation of legal rules.” If the answer had been permitted, I am not prepared to say that the ruling would have been serious error, for the learned judge further says in his opinion : “'But the practice upon this subject must be, to some extent, .under the control and discretion of the court.” On the other handy I am far from prepared to say that the ruling which but held the counsel to the rule stated was reversible error. The attention of the learned counsel, had been called to the fact that the form was objectionable by the specific objection of the learned counsel for the respondent interposed to the question almost immediately preceding the one thus ruled upon. I advise affirmance of the judgment and order, with costs. Present—Woodward, Jenks, Hooker, Gaynor and Rich, JJ. Judgment and order-unanimously affirmed, with costs.