Opinion
April 10, 1939.
Action by the plaintiff to recover damages for personal injuries claimed to have been sustained by the plaintiff when she fell while traversing a defective sidewalk maintained by the defendant municipality. The jury found for the defendant, and the appeal is from an order setting aside the verdict and granting a new trial on the ground that the verdict is against the weight of the evidence. Order reversed on the law, with costs, verdict for defendant reinstated and judgment directed to be entered thereon, with costs. The plaintiff's proof was limited to her testimony that the heel of her shoe caught in a hole in the sidewalk, and to photographs of the scene of the accident, showing what appears to be a break in the sidewalk extending from one side to the other. The record is barren of any showing as to the depth of the hole or of the extent of the break in any particular, or of the place where she claims her heel was caught. There is no proof whatsoever of measurements. Assuming, but not deciding, that the plaintiff established a prima facie cause of action, we are of opinion that the verdict is not contrary to the weight of the evidence and should not have been set aside for that reason. In all the authorities invoked by respondent, there was proof upon which a finding of liability might be predicated in addition to proof of the fact that the foot was caught. We are further of opinion that the verdict was not affected by the extraneous matter disclosed by the record. In any event, the objectionable question was withdrawn before it was answered, and counsel for plaintiff made no further reference to it, either by motion for a mistrial or in the motion to set aside the verdict. He, apparently, was satisfied with the disposition made of the matter at the time by the learned trial justice. ( Mulcahy Gibson, Inc., v. National Surety Co., 167 App. Div. 651; Harris v. Gossard Co., Inc., 194 id. 688; Dimon v. N.Y.C. H.R.R.R. Co., 173 N.Y. 356.) Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ., concur.