The judgment at the Circuit in favor of the plaintiff was reversed by the General Term, solely for the reason that evidence was admitted against defendants' objection, of the erection of a railing along the south side of the bridge the day after the accident, and was considered upon the question of negligence. The evidence was offered by the plaintiff, not generally, but for two purposes only which were explicitly stated. These were to show that the defendants exercised control over the bridge, and that they had sufficient funds at the time of the accident to pay for the protection constructed the next day. The court received it, when offered, for the first only of these purposes, adding: "I do not receive it for the purpose of showing negligence, whether it is any evidence that they had funds." The expression here is to be noticed in view of what happened at the close of the case. The defendants could not be chargeable *Page 402 with negligence for omitting to do what they had no means of doing, and their negligence neither existed nor could be proven unless they had funds in their hands. The court, therefore, used the expression, "negligence," as applicable only to their having funds, and not in its broader and more general sense. All through the discussion which followed, this was understood, and no misapprehension is apparent. The plaintiff insisted that the fact would warrant an inference of the possession of sufficient funds by the defendants. The latter denied it, and the court did not at once decide but held the question open. The learned judge said: "What I mean to say is this: I can't decide this case till the evidence is all in, and when it is submitted to me the question arises, did the commissioners have funds? And then I shall be asked to consider, for the first time, the effect of this evidence now offered; perhaps it will convince my mind that they had funds, and perhaps it will not." The result of the whole debate, and of the final ruling, was, that the evidence was admitted to show the defendants' control, but whether it tended also to show that the defendants were negligent, by reason of the possession of funds, was a question reserved until the evidence should be all in. When that time arrived the question reserved was decided. The case says that the evidence in question wasallowed and considered upon the question of defendants' negligence, and exception was taken by the defendants. It is now claimed that the evidence offered was admitted and considered as bearing upon the issue of negligence generally, and so error was committed. (Dougan v. C.T. Co., 56 N.Y. 1; Baird v. Daly, 68 id. 547.) We do not think that is a just construction of the ruling. No such question had been presented, and no such claim made. We are not to presume that the learned judge volunteered to decide a question not in the case, and which nobody had raised. We are to presume that the question which he decided at the close of the case was the question which was raised, and which he reserved until that point of time. The counsel who tried his case carefully, and expressly guarded himself against the risk now sought to be put upon him, ought not to *Page 403 be subjected to it upon a mere technical construction, plainly not intended. What was not offered in evidence cannot properly be said to have been "allowed," and the sense in which the learned judge used the word "negligence" is made quite apparent by his previous use of the same word as referring only to the possession of funds by the commissioners. We think, therefore, there was no error in the ruling at the Circuit, and it becomes unnecessary to consider the question argued at the bar, whether the evidence was admissible generally upon the question of negligence.
The respondent further insists that upon the facts the injured party was guilty of contributory negligence, and for that reason the reversal by the General Term should be sustained. We do not think that can be said as a conclusion of law. Although the walk across the bridge specially adapted to foot passengers was on the north side of the bridge and protected by a railing, it was not necessarily negligence to cross it on the other side. There was evidence that the northern sidewalk was drifted and obstructed by snow so as to turn passengers into the wagon track, or to the south side of the road, and that the walk on the north side of the bridge was icy and slippery. Under the circumstances the question of contributory negligence was one of fact, and having been found against the defendants, cannot here be reviewed.
The order of the General Term should be reversed and that of the Circuit affirmed, with costs.
All concur, except ANDREWS, Ch. J., absent.
Ordered accordingly.