The evidence in the case is insufficient to support the jury’s finding that the plaintiff was assaulted by an employee of the defendant acting within the scope of his employment. While we entertain no doubt that the defendant’s counsel made the statement of fact appearing in the opinion of the learned trial justice, such *912statement is not in the case on appeal and cannot be considered by this court. The proof of the nature and extent of the plaintiff’s injuries is also uncertain. The insertion of the silver plates in plaintiff’s arm was not shown to be the necessary result of plaintiff’s initial fall and injury. Judgment and order reversed and new trial granted, costs to abide the event. Blackmar, P. J., Jaycox, Manning, Kelby and Young, JJ., concur.