Curr v. Hundley

• Decision Date: 09 January 1893
• Citation: 31 P. 939,3 Colo.App. 54
• Parties: CURR v. HUNDLEY. [1]
• Court: Colorado Court of Appeals

31 P. 939

3 Colo.App. 54

CURR v. HUNDLEY. ^[1]

Court of Appeals of Colorado

January 9, 1893

Appeal from district court, El Paso county.

Action by John E. Hundley against John Curr. Judgment for plaintiff. Defendant appeals. Affirmed.

Lunt &amp Armit and Wolcott & Vaile, for appellant.

T.A McMorris and Wm. Harrison, for appellee.

RICHMOND, P.J.

Plaintiff Hundley, was the owner of lot 6, block 81, in the city of Colorado Springs, and defendant, Curr, owned lot 7 immediately south of lot 6, and continguous thereto. Plaintiff alleges that for more than a year last past there was standing upon this lot a brick building, which was used by him in conducting the livery business; that in October 1890, plaintiff and defendant entered into an agreement whereby, in consideration of $400 paid, and for other good and valuable considerations, the defendant agreed that he would not build upon, or obstruct any portion of, a strip of land, two feet wide, lying between the lines of lots 6 and 7; that after making said contract defendant proceeded to erect a building on lot 7, and in so doing built on, and otherwise obstructed, portions of the land mentioned in the agreement, contrary to the terms thereof; that, in excavating for the cellar and foundations of said building on his lot, he wrongfully dug under the surface of the land described in the contract, and under plaintiff's foundation, and removed the soil therefrom; that the work was carelessly and negligently performed, and that by reason of such negligence and want of care, and other wrongful acts, the foundation of plaintiff's building gave way, the south wall was cracked, and a portion thereof fell to the ground, and plaintiff's building was otherwise greatly and permanently injured; that he has expended in repairing the damages $1,387.75, and was otherwise permanently injured in the sum of $1,000, and that his business was injured to the extent of $500. Defendant answers, sets up the contract, and further alleges that he gave due notice of his intention; denies the negligence, and alleges due care and caution, and that plaintiff was guilty of contributory negligence in the construction of his building, and failure to take the necessary steps to protect his wall from possible injury liable to result from the excavation. A counterclaim is set up by the defendant in his answer, wherein he claims $300 from the plaintiff, alleging that the plaintiff's building was on the soil of the defendant, and was constructed of defective materials, and that he had failed to protect his wall, which fell in and upon the lot of the defendant, and thereby delayed him in the construction of his own building. Trial was had, and resulted in a verdict for the plaintiff in the sum of $2,237.75. Motion for a new trial overruled, and judgment entered upon the verdict. Appeal prayed to this court. The errors assigned are to admitting improper evidence, rejecting proper evidence, refusing instructions asked, and in instructions given.

It is insisted that the court erred in allowing the plaintiff to testify to what, in his judgment, was the permanent damage to his building. We are inclined to the opinion that the appellant is not in a position to raise this question, for the reason that the objection to the question, as well as to the answer, was not specifically stated. The rule is that an objection to testimony will not, in general, be considered in a court of review, unless the record shows that the grounds of such objection were fairly presented to the trial court. It is only where the testimony is wholly inadmissible for any purpose in the case that a general objection will suffice. Ward v. Wilms, 16 Colo. 86, 27 P. 247; Lothrop v. Roberts, 16 Colo. 250, 27 P. 698. The objection made was not to the question, or its form, but to the qualification of the witness. Had the objections been specifically stated, they might have been obviated or sustained. And in addition to this the record shows that other testimony, without objection, was given, supporting the estimate made by the plaintiff, and amply supporting the conclusion reached by the jury. If, therefore, the court erred in admitting the testimony of plaintiff in answer to the question, it is not sufficient to warrant us in reversing the judgment.

The next assignment of error is that the court erred in excluding evidence offered in support of defendant's counterclaim. We assume from the record that the action of the court in excluding evidence of damages set forth in the counterclaim was based upon its conclusion that the matters and things alleged did not...