Isherwood v. H.L. Jenkins Lumber Company
| Decision Date | 14 November 1902 |
| Docket Number | 13,176 - (118) |
| Citation | 92 N.W. 230,87 Minn. 388 |
| Parties | HENRY ISHERWOOD v. H.L. JENKINS LUMBER COMPANY |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Stevens county, Flaherty, J., denying its motion for judgment notwithstanding the verdict or for a new trial. Affirmed.
Personal Injury -- Champertous Contract as Defense.
In this, a personal injury action, it is held:
1. The verdict is sustained by the evidence.
2. The trial court did not err in its rulings as to the admission of evidence.
3. The defendant cannot avail itself of an alleged champertous contract, either as a defense, or by bringing it to the attention of the court and securing a dismissal of the action.
James A. Kellogg and Lewis C. Spooner, for appellant.
Cliff & Purcell, for respondent.
Action to recover damages for personal injuries sustained by the plaintiff from the fall of a pile of lumber in the defendant's yard. This is the second appeal herein. The nature of the action and the facts as claimed by the plaintiff are stated in the opinion of the court on the former appeal, and need not be here repeated. Isherwood v. H.L. Jenkins Lumber Co., 84 Minn. 423, 87 N.W. 931. The second trial of the action resulted in a verdict for the plaintiff in the sum of $1,000, and the defendant appealed from an order denying its motion for judgment notwithstanding the verdict, or for a new trial.
1. The defendant urges that the verdict is not sustained by the evidence, for the reason that it fails to show that the defendant was negligent in the premises, but does conclusively show that the plaintiff was guilty of contributory negligence, and that he assumed the risk of the position in which he placed himself at the time he was injured. The evidence of the plaintiff tended to establish substantially the same facts as the evidence on the former trial, which we held was sufficient to take the case to the jury upon all of these questions. The evidence on the part of the defendant tended to show that the pile of lumber which fell and injured the plaintiff was a small temporary pile, placed against the ends of the permanent piles to be thereafter placed therein; that it was in plain view of the plaintiff; and that by the exercise of ordinary care he might have avoided the accident. The evidence, however, was far from conclusive in the defendant's favor, and, from an examination of the whole record, we are of the opinion that all of the questions were for the jury, and that the verdict is sustained by the evidence.
2. The plaintiff was permitted to testify that before his injury his health had been good. This is urged as error, because "it may have been that plaintiff was disabled from other causes than the injury complained of, and yet the jury may have based their estimate of damages wholly on this evidence." There was no evidence of other causes, and, were it otherwise, it is obvious that the statement of the plaintiff as to his health could not have been prejudicial. There was no error in the ruling. The trial court also permitted, over the objection of the defendant, a witness, not an expert, to testify that he saw the plaintiff after the accident, and that he appeared to be in pain. This is urged as error, for the reason that it is merely an opinion of the witness, and not a narration of facts observed by him. It was not error to receive the evidence, for it is competent for such a witness to testify that a person appeared to be sick or well or in pain. Cannady v. Lynch, 27 Minn. 435, 8 N.W. 164; Hall v. City of Austin, 73 Minn. 134, 75 N.W. 1121.
3. The defendant offered to prove a contract between the plaintiff and others as to the prosecution of this action, which, for...
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