Brooks v. City of Sioux City

McClain, J. [642] 1 2 [641] While there is a general assertion in appellant’s argument that the instructions were erroneous, [642] and that the verdict is without support in the. evidence, the only assignments argued are those based on rulings in the introduction of evidence. Of these there are 59, in all of which, save 4, the reference to the page of the abstract on which the alleged ruling is shown is left blank, and there is no other sufficiently definite reference. The rulings which are sufficiently referred to are correct. The objections of appellant to the questions asked were interposed after the answers had been given. After the witness had thus been allowed, without proper objection, to open up the matter, it was certainly not prejudicial error to allow him to complete his testimony on the subject. 3 4 Without regard to the indefiniteness of the assignments, we may, perhaps, properly make the following suggestions as to the errors most strongly urged. A witness for plaintiff was not allowed to say that the walk in question was, prior to the accident, in bad condition, while a witness for defendant was allowed to say that it was a good and sound walk, and the boards were good and sound boards. It seems to us plain that these rulings were correct. To state that the walk was defective was to announce a conclusion. The witness should have pointed out the condition which rendered it defective. But, on the other hand, to say that the walk was sound and in good condition was a statement of fact. It would be impossible for a witness to describe the absence of defects which constituted soundness and good condition. Many objections are made to hypothetical questions asked of expert medical witnesses, on the ground that they do not embody all the facts as shown by the record, but it is well settled that a hypothetical question is not improper simply because it includes only a part of the facts in the record. Rodgers, Expert Testimony (2d Ed.), section 65 ; Under-hill, Evidence, section 273; Jones, Evidence, section 373.— Affirmed.