Maunder v. Pozzo

[741]

MELVIN, J.

appeal from a judgment for damages for personal injuries and from an order denying their motion for a new trial.

Defendants were general contractors engaged in the erection of a building. Plaintiff was a subcontractor who had undertaken the construction of the stairs in the building. While he was employed about his task he was struck by a piece of brick falling from the floor above the temporary stairway upon which he was at work. The result was an injury which caused the loss of one of plaintiff’s eyes. Judgment was given in his favor for one thousand two hundred dollars.

Before the findings were signed, but after the taking of testimony had closed and the litigants on both sides had rested, defendants moved to reopen the case for the taking of further testimony relative to the defense of the statute of limitations. The court denied the motion and such denial is specified by appellant as error. The complaint set forth the date of the alleged accident as the tenth day of January, 1912, while in the answer it was described as having happened during the month of December, 1911, and a defense was pleaded which was based upon the alleged bar of subdivision 3 of section 340 of the Code of Civil Procedure, the complaint having been filed on January. 4, 1913. The court found that the accident happened on the 10th of January, 1912, and this finding was supported by the testimony of plaintiff, together with that of his daughter and the statement of his physician, who said that he first treated plaintiff’s injury on January 11, 1912. Defendants offered testimony in conflict with that of plaintiff and his witnesses but the newly found evidence described in the affidavits supporting the motion to reopen the case was offered upon the theory that the records of the plumbing inspector’s office showed completion and inspection of the rough plumbing in the building prior to the date mentioned by plaintiff, and that other evidence proved that one Sherrin, admittedly an eye-witness to the accident, did no work in the building after the rough plumbing had been finished. But the newly discovered evidence was merely cumulative. It is a matter of common knowledge that records of inspection of plumbing are kept, and of course if these records tended to contradict the plaintiff in the present case, due diligence on the part of defendants would have