57 Iowa 601 | Iowa | 1881
The bridge in question was constructed by Davis county over Fox River, in 1863. The bridge was built entirely of oak timber, and was constructed of a span of about forty feet, with an apron on each side about fourteen feet wide, and was about sixteen feet above the bed of the stream. The accident of which the plaintiff complains occurred on the 10th day of June, 1875. At that time the timbers of the bridge were badly rotted. As the plaintiff was crossing over the bridge in a funeral procession, in a two-horse wagon, in which
John E. Ferguson was introduced as a witness, and amongst other things, testified as follows: “ Plaintiff’s health was good until the accident; he was active and able to work hard; not so active since; have been where he was in bed at times since the accident, and he had fever; he generally complained of his back; the spells would last from four days to a week or longer, and he would then be able to go to work again; he would do a hard day’s work, and the next day be unable to do anything; have worked with him since in harvest-field; there were three or four times he would quit work.” The witness was then asked the following question: “State why he quit, judging from what he said.” This was objected to as incompetent. Tire objection was overruled, and the witness answered: “ lie would say he would have to quit and rest awhile; that his back was hurting him, so that he could not sit up straight; this was in 1876 and 1878.”
Wesley McMains, a witness on behalf of the defendant, was asked, upon cross-examination, the following question: “Do you recollect plaintiff’s stopping to rest whilst at work, and
The defendant assigns these several answers as error, and insists that the statements admitted are self serving declarations, made after convalescence, and that they are, therefore, inadmissible. The plaintiff insists that the declarations are the immediate accompaniment of acts, which they tend to explain, and that they are admissible as part of the res gestee. A majority of the court think the declarations inadmissible under the doctrine announced in Wharton’s Evidence, sections 268, 1100 and 1101, and the cases therein cited. A minority of the court regard the declarations as admissible under Wharton’s Evidence, section 1102, and 1 Greenleaf on Evidence, See. 108, and authorities cited.
The criticism made upon this instruction is that it does not define whose experiene shall govern the action of the board, whether the experience of the supervisors, who are required to exercise only ordinary care, or the experience of the skilled examiner whom they employ to inspect for them. Even if the instruction means the latter, we think it is not erroneous. Eor if the board themselves did not possess the requisite skill to make an inspection of the bridge, then in the matter of inspection, as well as in the frequency with which it should be made, they ought to be governed by the experience of the skilled person employed by them for that purpose.
The accident to plaintiff occurred on the 10th day of June, 1875. Surely it was the duty of the board, not having an examination made for two and one-half years, to cause an examination to be made upon being informed that the bridge was dangerous. As applied to the facts of the case the instruction is not erroneous.
Reversed.