Strnad v. William Messer Co.

Plaintiff sued the defendant as the employer of a man who carelessly threw a piece of wood out of a building in course of construction; plaintiff having been struck by the wood in its descent. At the time of the accident the plaintiff was an infant about 10 years of age. She sues by her guardian ad litem. "

There is no doubt about the injury, and practically none as to its having occurred in the manner indicated. The issue litigated was the identity of the person who threw or allowed the piece of wood to fall, and whether such person was an employé of the defendant. In order to assist in the identification, plaintiff’s counsel asked of a witness, who was testifying through an interpreter, and who was manifestly slow-witted also, questions which might in some aspects be considered as leading; but they were not obnoxiously so, if they were open to that criticism at' all.

*315The learned trial judge excluded an entire series of such questions, whereupon plaintiff’s counsel asked to be relieved of the trial of the case, and also asked to have a juror withdrawn. Counsel’s last remark was:

“I can’t proceed. I can’t ask any questions. Every question I ask is objected to.”

The court thereupon, addressing defendant’s counsel, said:

“What is your motion?”

Defendant’s counsel replied:

“If he is unwilling to proceed, I move to dismiss.”

The motion was granted, and plaintiff’s counsel excepted.

After a careful examination- of the evidence, I am of opinion that the questions, or at least most of them, which plaintiff’s counsel had asked, were improperly excluded, and plaintiff’s exceptions to the rulings present reversible error. The record is such that manifestly, in the interest of justice, there must be a new trial, which is hereby directed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.