SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

MAUD CRUIKSHANK, Appellant, v. WILLIAM J. CRUIKSHANK,

Respondent.

Verdict of "not proven," corrected by the court and entered "no" — affidavits of jurors as to their intent.

In an action for divorce, in which thirteen issues had been submitted to the jury under a charge that unless the party, on whom rested the burden of proof of adultery, had proved it, the answer to the questions should be "no," the jury rendered a verdict in which twelve of the issues were answered "no," while the other was answered not proven." The court stated that it understood the jury to mean "no" by the words not proven," and said that if it misunderstood the jury the court desired to be corrected; no response being made, it directed that the verdict be entered accordingly; affidavits of each of the jurors were afterwards submitted to the effect that the change in the wording of the verdict expressed their true intent and verdict.

Held, that the trial court was justified in correcting the wording of the verdict, especially so as this construction was put upon the words in the presence of the jury and with their assent;

That the only effect of the affidavits was to fortify the trial court in its conclusion, and that it was not error to receive them for the purpose of determining the real intent of the jury.

APPEAL by the plaintiff, Maud Cruikshank, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of December, 1898, denying the plaintiff's motion to set aside the verdict of a jury.

Vernon M. Davis [Almet R. Latson with him on the brief], for the appellant.

James C. Cropsey, for the respondent.

WOODWARD, J.:

This is an action for divorce, and, at the trial, thirteen issues were submitted to the jury, the court charging that, unless the party on whom rested the burden of proof of adultery had proved it, the answer to the questions should be "no." The jury, after being out nearly a full day, brought in a verdict, in which twelve of the issues were answered "no," while the other was answered "not proven." Counsel for defendant, immediately after the verdict was read and

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

before the jury was discharged, asked the court to direct the entry of the verdict and answer of the jury to the fifth question as "no," on the ground that the words "not proven " were equivalent to that. The court said that it had charged that, unless the party upon whom the burden of proof was to establish adultery had proved it, the answer to the question should be "no," and that that was what the court understood the jury to mean by its answer; and stated that if the court misunderstood the jury in its conception of the verdict, it desired to be corrected. The jury made no response and the court then directed the verdict to be recorded as "no," to which the plaintiff excepted. Plaintiff then moved to set aside the verdict and for a new trial upon the ground that the answer "not proven," which was given by the jury, constituted a mistrial by the jury. The trial court reserved its decision upon this motion, and affidavits were afterward submitted from each of the jurors, in which it was stated that the change in the wording of the verdict was satisfactory to all of the jurors, and that it expressed their true intent and verdict. It was further stated that before the answer "not proven" was written down in the jury room the jury had agreed that, if it was decided by the court to be improper in form, the answer no" should be substituted in its place, and that the recording of their verdict as "no" correctly expressed the intention and purpose of the jury.

In the case of Hodgkins v. Mead (119 N. Y. 166), where the jury had omitted to include in its verdict the amount due, simply finding a "verdict for the plaintiff," the court permitted an amendment of the verdict after the discharge of the jury, upon their affidavits that they had intended to allow the plaintiff the full amount of his claim; and this action on the part of the trial court was sustained on appeal. In this case the court say: "In following rules of practice for the due and orderly administration of the law, care should be taken that justice is not smothered by a too slavish adherence to the mere forms and technicalities of procedure." In the case at bar it is conceded that the court might have directed the jury to retire and bring in a verdict in harmony with the charge, and unless we are to smother justice with a "too slavish adherence to the mere forms and technicalities of procedure," it would be difficult to suggest a reason why the order in this case should be reversed.

As was said in the case of Hodgkins v. Mead (supra): “Where

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the conceded facts are such as this case shows, I am quite certain that no bad precedent can be adduced from the court interfering to aid a verdict, in regard to the meaning of which there cannot, upon the facts, be room for two opinions." The burden of proving adultery was upon the plaintiff; the jury found that the fact of adultery was "not proven." This was clearly equivalent to answering the issue by "no," and the trial court was entirely justified in so construing the answer, especially so as this construction was put upon the words in the presence of the jury with a request to be corrected if it did not express the true verdict. (See Brigg v. Hilton, 99 N. Y. 517, 531.)

The affidavits of the members of the jury did not contradict or impeach the verdict in any sense; they merely served to make certain what was already sufficiently obvious, that the jury intended to find that, under the evidence, the defendant was not guilty of the adultery covered by the fifth issue. Whether this conclusion was stated by the use of the word "no," or by the words "not proven," is of no material importance so long as the verdict was made to express the fact agreed upon by the jury. The only effect of the affidavits is to fortify the learned trial court in a conclusion which could hardly have been different. It is clearly not error to receive them for the purpose of determining the real intent of the jury. (Dalrymple v. Williams, 63 N. Y. 361.)

We are clearly of opinion, and the authorities are in accord, that the learned trial court was authorized by section 723 of the Code of Civil Procedure in correcting the wording. of the verdict without changing its intent or scope. (Lowenstein v. Lombard, Ayres & Co., 2 App. Div. 610; Humphreys v. Woodstown, 7 Cent. Rep. 109, 114; Petrie v. Hannay, 3 Term Rep. 659; McMahan v. Me Mahan, 13 Penn. St. 376, 383.) "The rule is well settled," say the court in the case of Segelke v. Finan (48 Hun, 310)," that where the findings of a jury are free from ambiguity and their intentions clear the court has a right to make the verdict conform therewith." The order appealed from should be affirmed, with costs.

All concurred.

Order denying motion for new trial affirmed, with costs.

App. Div.] SECOND DEPARTMENT, MARCH TERM, 1899.

MARGARET CUMMINGS, Respondent, v. THE VILLAGE OF NEW ROCHELLE, Appellant.

Negligence — injury on a crosswalk on which a channel was worn under the end of a flagstone where the foot of the injured person was caught—contributory negligence.

A stranger in a village, while walking slowly across a street, in broad daylight, upon a flagged crosswalk, which, without observing any defect therein, she had passed over for the first time a few moments previously, behind two other persons with whom she was conversing, was thrown down as the result of catching her foot in a channel, worn under the end of one of the flagstones, at a point where the space, formerly occupied by a street railway, had been filled in with cobble stones and blue stone refuse, and had, by the action of the elements, sunk below the level of the remainder of the crosswalk. In an action brought by her against the village to recover for injuries thus sustained, it appeared that the defective condition of the crosswalk, at the point of the accident, had existed for a period of six months, and that other persons had tripped and fallen at this point. The plaintiff's companions testified that the defect was easily seen in passing over the walk. Held, that, under the circumstances, the jury were justified in concluding that the plaintiff was exercising a degree of care consistent with her duties in the premises, and that she was free from contributory negligence.

APPEAL by the defendant, The Village of New Rochelle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of October, 1898, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 19th day of October, 1898, denying the defendant's motion for a new trial made upon the minutes.

J. Addison Young, for the appellant.

Isaac N. Mills, for the respondent.

WOODWARD, J.:

The law is too well established in this State to require the citing of authorities that, in an action for personal injuries based on the negligence of the defendant, the absence of negligence on the part of the plaintiff contributing to the injury must be affirmatively shown by the plaintiff, either by direct proof or by circumstances, and that no presumption arises from the mere happening of an injury, and

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. proof of negligence on the part of the defendant, that the plaintiff was free from blame. There are, however, many cases in which the affirmative evidence showing the lack of contributory negligence is necessarily limited, and the conclusion grows out of the circumstances in which the accident occurs, rather than from any direct and positive evidence. This is clearly recognized in the case of Weston v. City of Troy (139 N. Y. 281) where the court, after calling attention to the fact that "there is no shred of evidence as to the exercise by the plaintiff of any care on the occasion," say: "If the plaintiff did not discover the ridge and passed along relying upon the walk being safe, or supposing, if she saw the ridge, that it was made by compacted snow, and not by ice, these and other circumstances might have been shown to meet the burden the law places upon a plaintiff suing for negligence of being herself free from fault." In the case at bar, the plaintiff, in company with three other ladies, had, shortly before the accident complained of, passed over the defective crosswalk without their attention being called to the fact that it was defective. Shortly afterward the plaintiff, separating from her companions, retraced her steps to meet some friends at a point farther along the highway, and, in passing over the crosswalk, walking, as she testifies, slowly, she caught her toe in the defective place in the crosswalk and fell, sustaining injuries for which she now seeks to recover.

It appears from the evidence that, at some time previous to the accident, there had been a single-track street railroad in what is known as Depot place in the village of New Rochelle. This is a short street leading from Railroad avenue to the depot of the railroads. Depot place, in common with other public highways in that locality, was macadamized with blue stone, and at the point of intersection with Railroad avenue there is a crosswalk of blue flagstone, consisting of two stones laid side by side and continuing across Depot place. This is a continuation of the sidewalk along Railroad avenue. In the construction of the street railroad, the flagstone had been cut away and the space between the tracks had been paved with cobble stones. Subsequently the track of the street railroad was removed, and the space which it had occupied was filled in with the cobble stones and blue stone refuse, which, with the action of the elements, has sunk below the level of the remain