Rosquist v. D. M. Gilmore Furniture Co.

Collins, J. The plaintiff in this action made several attempts, after defendant had rested its side of the case, to introduce testimony tending to show that the materials used for flooring the platform on which the accident occurred were insufficient, and unsuitable for the purpose, principally because lacking in durability. The court rejected this testimony on the ground that it was not rebutting, and this ruling is assigned as error. Evidence of the unsuitable character of the materials used in the construction of the platform would have been competent and admissible in support of plaintiff’s original case, and on the question of defendant’s negligence; but, when attempting to establish his right to recover in the first instance, plaintiff made no effort to prove anything of the sort. It is true that defendant had previously gone into the manner in which the platform had been built, but this was defensive merely, and in it there was no new or affirmative fact which defendant had endeavored to prove. This testimony was for the sole purpose of meeting and counteracting the plaintiff’s contention and proofs as to the character of the place in which he had been put .at work. That proposed by plaintiff and excluded by the court was not properly in reply or in rebuttal, but should have been given on the main case. It is in the discretion of the court to permit testimony to-be given in reply which should properly have been given in chief, and there is no claim here that the court did not exercise a sound discretion when rejecting plaintiff’s offers. Plaintiff argues that the court erred in its charge to the jury. The charge was unnecessarily lengthy, caused — to some extent, perhaps —by incorporating into it, almost verbatim, four out of nine requests to charge submitted in behalf of plaintiff, and also all of defend 194 ant’s requests, seven in number. It is not improbable that, by closely scrutinizing the charge as given, slight errors might be found, but the only exception to it was in these words: “The plaintiff excepts to the refusal of the court to give plaintiff’s 4th, 6th, 7th, 8th, and 9th requests, and to the modification of the 1st and 2d of plaintiff’s requests as given. Plaintiff also excepts to the giving of each of defendant’s requests.” This was nothing more than a general exception, and cannot be distinguished from the exception held not good in Shull v. Raymond, 23 Minn. 66. See, also, Pound v. Port Huron & S. W. Ry. Co., 54 Mich. 13, (19 N. W. Rep. 570;) Gillett v. Wisconsin Co-operative Co., 44 Wis. 463; Tousey v. Roberts, 114 N. Y. 312, (21 N. E. Rep. 299,) and cases cited. The exception did not call attention to the few special matters which appellant’s counsel now insist were errors in the charge, so that the court could have acted intelligently and deliberately had it attempted at the time to revise and correct the same. See Carroll v. Williston, 44 Minn. 287, (46 N. W. Rep. 352;) State v. Miller, 45 Minn. 522, (48 N. W. Rep. 401.) (Opinion published 53 N. W. Rep. 3S5.) Order affirmed. Mitchell and Diceinson, JJ. We are not prepared to say that plaintiff’s exception to the court’s refusals to charge was not sufficiently specific, but concur in the result, on the ground that such refusals constituted no prejudicial error.