Haubrock v. Lamping , 4 Ohio Law. Abs. 270 ( 1925 )

HAMILTON, J.

This cause arose owing to the alleged negligence of P. J. Lamping maintaining a pit in a passageway between two houses owned by him, said passageway being used as a means of access to a kitchen situated in the rear of one of these houses. It appears from the evidence that Mary Haubrock, while using said passageway, as an employee of a tenant fell into said pit and was severely injured.

Immediately after said accident she went to the kitchen situated at the end of said passageway and told her employer of what had occurred, whereupon she fainted and was taken to a hospital. An attempt was made to introduce the testimony of the employer, but the court excluded same as hearsay.

Defendant, Lamping, contended that Haubrock was a mere trespasser and that there was no direct evidence to show that Haubrock was injured by falling into said pit.

Evidence was introduced tending to show that Haubrock was a licensee and that although no one saw the accident, the apron and pocketbook of the injured person were found at the bottom of the pit.

On motion of Lamping the Hamilton Common Pleas directed a verdict in his favor. Error was prosecuted and the Court of Appeals held:

1. Where a statement is made immediately after the injury, in the presence of the person testifying who asserts the circumstances as observed by him, this constitutes an exception to the hearsay rule, and is admissible.

2. Exclusion of the testimony of the employer as to what transpired immediately after the accident was error. -

3. Whether the party was a licensee or trespasser and whether injury occurred as alleged are matters of fact for the jury to decide and it was reversible error to direct verdict in view of this evidence.

Judgment reversed and case remanded.