This action was brought to recover damages for injuries sustained by the plaintiff in falling upon the sidewalk on Canal street in the village of Ellenville. Canal street, at the point of the accident, descends about seven in one hundred feet. Cross street runs at right angles and intersects Canal street above the place of the accident. Along Cross street is a ditch, which collects the water upon the surface, which flows through a culvert in the sidewalk into Canal street.
The negligence charged against the defendant was that the trustees had permitted the throat of the culvert to become clogged, and that, in consequence, the water flowed over on to the sidewalk and froze, and that it was upon the ice so formed that the plaintiff fell.
It is contended, on behalf of the appellants, that the plaintiff also claimed the right to recover upon the ground that the throat of the culvert was insufficient in size, as originally constructed, to carry off the water that accumulated in the ditch. Much evidence was given tending to show that the *Page 576 water flowed from the ditch in Cross street over upon the sidewalk. This evidence was objected to and was admitted under the exceptions taken by the appellants' counsel. Our examination, however, fails to show the admission of any evidence establishing that the flow of the water was retarded in consequence of an insufficient throat in the original construction of the culvert. It was entirely competent and proper for the plaintiff to show that the water flowed over upon the sidewalk, and that it had done so for a long time prior to the accident. It was entirely proper for him to show that this was owing to the clogging up of the throat of the culvert. We consequently are of the opinion that no error was committed in the admission of the testimony referred to.
The trial judge did submit the question to the jury as to whether the sluiceway, as he called it, was sufficient, but to this there was no exception taken; consequently, there was no error committed upon which we can reverse.
It is claimed on behalf of the appellants that the court erred in receiving in evidence the map of the engineer, made some years after the accident. Evidence was subsequently given tending to show that Cross street had been widened after the accident, and that the gutter was constructed some feet southerly from the place where it formerly existed; so that, when the water flowing therein reached the sidewalk, it had to turn westerly up the grade in order to flow through the culvert. But these facts did not appear at the time the engineer gave his evidence with reference to the map and its reception in evidence. It follows that there was no error in the admission of the evidence. The motion made to strike out the evidence after it was received was discretionary with the court. The defendant should have requested the court to instruct the jury that the evidence should be disregarded.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 577