Negligence — Fall of concrete from high building — Case for jury — Evidence.
In an action of trespass to recover damages for personal injuries, it appeared that the plaintiff was struck by a piece of concrete which fell from the roof of a building upon which defendant's employees were engaged in chipping concrete. It also appeared that no other work was being done on the building; that other pieces of concrete were seen falling from the place where defendant's employees were working; and that the work was being done directly above a place provided for loading and unloading wagons.
Under such circumstances, the case was for the jury and a verdict for the plaintiff will be sustained.
Where in such a case, the plaintiff alleged in his statement that he was "wounded on the head and sustained a fracture of the skull and a concussion of the brain," it was not error to admit evidence of an injury to plaintiff's ear. The statement sufficiently informed the defendant of the main features and situation of the injury.
Records and time sheets compiled from reports made by persons not called as witnesses, are properly excluded from evidence, as being hearsay.
Practice C.P. — Affidavit of defense — Failure to answer — Allegations of defendant's statement — Practice act — Amendment — Statute of limitations.
In an action of trespass, plaintiff averrred in his statement that he was struck by a piece of concrete caused to fall by the negligence of the defendant, its servants, agents, etc. The defendant averred in its affidavit of defense that "plaintiff was not struck with a piece of concrete — caused to fall by reason of the carelessness of the defendant, its servants, agents, etc."
In such case the allegations of the statement concerning the person by whom the act was committed and the agency or the employment of such person, were not denied in the affidavit.
The defendant will not be permitted to amend its affidavit of defense, to the prejudice of the plaintiff, after the statute of limitations has run.
Argued October 13, 1926.
PER CURIAM, October 26, 1926:
The judgment of the court below is affirmed on the opinion of Judge FINLETTER.