68 Iowa 37 | Iowa | 1885
This ease is before us on a second appeal. The decision upon the former appeal is reported in 63 Iowa, 210. The evidence upon this appeal differs in several respects from the evidence upon the former appeal, but it is not important that we should set out the difference in detail. The plaintiff was an employe of the defendant, and at the time of the injury was engaged with one Lawrence in taking a stick of timber from a pile in the defendant’s lumber-yard. While so engaged, either the same pile, or one standing next to it, fell, and several sticks of timber fell on the plaintiff, and caused the injury of which he complains. He avers that at the time of the injury the pile which fell was not properly piled, and the evidence, we think, so shows. The cross-strips were not long enough to bind the different tiers together. The evidence tended strongly, if not conclusively, to show that there was no fault in the original construction, but that several of the cross-strips had been cut to enable employes of the defendant to take timber out of the pile, and proper steps had not been taken to bind the tiers together again.
It is contended, however, that even a deposition may be read in evidence where no statutory ground appears for taking it; and in support of such rule Cook v. Blair, 50 Iowa, 128, is cited. But in that case no objection was made at any time that there was a want of statutory
One other position taken by the plaintiff remains to be noticed. He attempted to show that the witness had become a non-resideut of the state. Eor this purpose he introduced as a witness one Brown, who testified that, by reputation, the witness TIosmer had left the state. But, in our opinion, the fact that the witness had left the state should have been established by the testimony of some one who knew the fact, or could testify to circumstances within his knowledge which would justify the inference of such fact. We know no rule by which the fact could be found from common report or reputation.
Several other errors are assigned; hut as to some of them we think that our views are sufficiently expressed in what we have said as to tlie others. We may say that probably the questions presented will notarise upon another trial.
Reversed.