19 S.D. 139 | S.D. | 1905
This is an action by the plaintiff to recover from the defendant damages for personal injuries alleged to have been caused by certain lumber extending out onto the sidewalk in front of defendant’s lumber yard, over which he fell, while passing, along said sidewalk, betweon 5 and 6 o’clock on the evening of January 8, 1902. Verdict and judgment were in favor of the plaintiff, and the defendant has appealed.
It is disclosed by the evidence that the defendant had a lumber yard in Deadwood, and that on the evening of the alleged injury the plaintiff, while passing along the sidewalk, when it was too dark for him to observe the obstruction,' fell-over it upon the sidewalk, and wasinjúred, The grounds upon which a reversal of the judgment is claimed are, among, others: (1) That the court erred in its refusal to strike out the evidence of a certain witness — Mrs. Politerfe — as to statements made to her by the plaintiff subsequently to the injury in regard tb the same; (2) that the court erred in admitting evidence of the plaintiff as to statements made to him by one Graham, an employee of the defendant corporation in and about'its lumber yard, made subsequently to the alleged injury, as to the ownership of the lumber that caused the injury; (3) that the court erred in admitting evidence of the expenses incurred by the plaintiff in consequence of the injury; (4) that the court erred in admitting the testimony of physicians as to the length of time the plaintiff was liable to. be affected by the injury.
On the trial Mrs. Politere, a witness on the part of the plaintiff, testified, among other things, as follows: “I remember that he said he fell and hurt himself; that he suffered pain in his limb and back. He told me that it hurt in his hip, and also
But as the other questions presented may necessarily arise upon another trial, we deem it proper to express our views upon these questions at this time. The second ground for reversal is based, upon the evidence as to statements made by-Graham, the employee of the defendant, to the plaintiff, and- is as follows: “I had a conversation with Graham about this lumber. Q. You may state what it was. (Counsel for defendant objected to this question as incompetent, there being no proof that Graham had any authority, or that anything he said or did at that time was in the course of his employment, or i binding upon the defendant.) A. Why, I opened the door, and I spoke to him — mentioned his-name — and asked him if he was busy, and" he says, ‘No. ’ ‘Well, ’ I says, ‘Come out here. I want to show you something, ’ or words to that effect; and he came ■ out and I says to him, ‘Whose lumber is that piled there?’ He says, ‘That is ours.’ ” The precise nature of the duties of Graham are not made clear by the evidence, but there was no evidence showing that he had authority to bind defendant by his declarations in any manner in respect to the injury alleged to
It is further contended by the appellant that the court erred in admitting the evidence offered on the part of the plaintiff as to the expenses he had incurred by reason of the injury, on the ground that there was no evidence as to the value of the
It is further contended by the appellant that the court erred in permitting the physicians to testify as to the iength of time the plaintiff’s injury would continue to affect him. Dr. Howe, on being examined, was asked the following question: “What, in your judgment, from the treatment you have given the plaintiff, the condition you found him in, and the condition that he is in at the present time, what, in your judgment, or how long, in your judgment, will that condition exist or continue?” Objécted to by counsel for defendant as incompetent. Objection overruled, exception taken. In answer he said: “In my
The contention of the defendant that the plaintiff’s condi
The judgment of the circuit court and order denying a new trial are reversed.