Smith v. Grand Street, &c. Railroad

Cullen, J. I am still of the opinion expressed on the trial, that the evidence offered was incompetent. The case cited by defendant’s counsel (People v. Bush, 3 Parker, 552), would seem to hold a contrary rule. If so, I think it erroneous, and its authority overruled by subsequent cases (Mailler v. Express Propeller Line, 61 N. Y. 316 ; Warner v. N. Y. Central R. R. Co., 44 Id. 465). It is now attempted to justify the admission of such evidence on the question of the mother’s knowledge of the plaintiff’s habits. I did not understand it was offered in that view on the trial. But even in this respect the offer did not go far enough. The defendant offered to show, not that the plaintiff disobeyed the mother’s directions, but that it was allowed to play in the street. I cannot see that this would be material upon the mother’s right to believe that the child would obey her directions. The amount of the verdict may be larger than the [64] court' would have awarded, but it is plainly not so excessive as to justify the interference of the court. Motion for a new trial denied.