Lissak v. Crocker Estate Co.

Citations

• 119 Cal. 442
• 51 P. 688
• 1897 Cal. LEXIS 916

Syllabus

<p>Negligence—Fall oe Elevator—Evidence—Declarations of Person in Charge—Res Gestae—Narrative of Past Occurrence—Prejudicial Error—Estoppel of Plaintiff—Appeal.—In an action for an injury received from the fall of an elevator, owing to the alleged negligence of the defendant, evidence of a conversation had by plaintiff with the person in charge of the elevator after it had stopped in its fall, in which in response to a question as to what had happened he declared that “he lost all control, and the connection cord got broke,” is incompetent, the declaration being in its nature a narrative of a past occurrence, and no part of the res gestee, and such incompetent evidence, being of a character to charge the defendant with negligence, must be deemed prejudicial; nor can the plaintiff, after insisting upon the admission of the evidence over an objection to its admissibility, be permitted to defend his course by contending, upon appeal of the defendant, that the error was harmless.</p> <p>Id.—Testimony of Physician—Waivek of Objection—Implied Consent of Patient—Erroneous Order Striking Out.—Where the plaintiff had testified that, after the fall of the elevator he was taken to the office of a physician, and gave testimony respecting the examination and treatment given him by such physician, and the physician was called for the defense and testified, without objection of plaintiff, respecting his examination of plaintiff and the remedies used, and the nature of his injuries, the failure of plaintiff to object thereto was a waiver of objection, and an implied consent to the evidence, which could not be revoked, and it was error for the court, upon plaintiff’s objection to further evidence of the witness, upon the ground that he was disqualified, to strike out the evidence previously given by the physician, and to instruct the jury to disregard it.</p> <p>Review upon Appeal—Amendable Objection to Complaint—Reversal— New Trial.—Where the judgment is reversed and the cause rema