Bogin v. Goodman

PER CURIAM.

The plaintiff, while descending a flight of stairs in going from his apartment to the street, caught his foot in a piece of tin that was used to fasten the oilcloth to the stairs, which tin had become worn and projected above the oilcloth, and fell, causing the injuries- for which he sued and recovered a judgment for $250. .The verdict of the jury was set aside,- and from the order granting a new trial the plaintiff appeals.

It was shown that the defective condition of the stair fastening had existed for about one month prior to the accident. The defendant was the owner of the premises and acted also as the janitor. There was sufficient evidence from which the jury could find absence of negligence on the part of the plaintiff and negligence on the part of the defendant, and there was no exception to the judge’s charge, which was perfectly fair and presented the questions plainly and concisely to the jury, and no request to charge otherwise was made by either party. The defendant urges that there was reversible error committed upon the trial arising out of the following-occurrence: A juror asked the defendant the following question:

“Q. Do you know whether accident insurance is carried there by the owners? A. Yes. Q. Have you a policy? A. Yes, sir.”

After these questions had been answered, the defendant’s counsel then objected as “incompetent, irrelevant, and immaterial.” This objection was overruled. The plaintiff’s counsel then said: “I consent that it be stricken out.” The defendant’s counsel said: “I object to its being stricken out.” It will be seen, that no objection was made until after the questions had been fully answered, and also that the defendant’s counsel objected to having the evidence stricken out. The evidence was not adduced by the plaintiff, nor was he responsible for its production. In view of the fact that the defendant’s counsel seemed desirous of having the testimony remain in, and made no request to have it disregarded by the jury, there was no reversible error committed in connection therewith. The case was fairly tried, and there was no reason for setting aside the verdict of the jury.

Order reversed, and verdict reinstated, with costs to appellant in this court and in the court below.