
    Brant v. City of Lyons.
    1. Practice in Supreme Court: question to expert witness: evidence to support. Where upon an assumed statement of facts an expert witness is asked for an opinion, but objection is made upon the ground that there is no evidence of the facts assumed, this court cannot consider such objection, when the abstract does not purport to contain all the evidence.
    2. Evidence: cross-examination. Testimony as to the condition of a sidewalk some months after the injury complained of, furnished no basis for a cross-examination as to the condition of the sidewalk at the time the injury occurred.
    3. -: expert testimony: limitation op. A physician may give his professional opinion as to the cause of a hemorrhage, but it is not competent for him to express an opinion as to whether or not it was occasioned by the negligence of the patient.
    4. Practice in Supreme Court: evidence not certipied. Where the abstract does not purport to contain all the evidence, this court cannot consider appellant’s objections that the damages are excessive and that the verdict is not supported by the evidence.
    5. Exceptions to Instructions: time op taking. Exceptions to instructions, which are not taken when the instructions are given nor filed within three days after the verdict (Code, § 2789), cannot be considered.
    6. Juror: misconduct op: appidavitto establish. An affidavit that one of the jurors, whose name is not given, was heard in the ante-room of the court house, in the presence of others, to discuss the evidence in the- cause on which he was sitting, but which does not set forth what was said by the juror, is too indefinite to be made the basis for setting aside the verdict.
    
      Appeal from Clinton Circuit Court.
    
    Saturday, December 9.
    Action to recover for injuries sustained on defendant’s sidewalk. Jury trial. Verdict and judgment for plaintiff for $1,000. The defendant appeals.
    
      A. T. Wheeler and AT. Corning, for appellants.
    
      W. C. Grohe and L. A. Ellis, for appellee.
   Day, J.

I. One Dr. Daly was produced as a witness on an<^ extent of the plaintiffs injuries, he was ashed the following questions: “Suppose these injuries of which you speak were caused by falling violently upon a curb-stone, or the curbing or any other hard substance, and these symptoms of which you now testify followed this injury and this fall, to what would you attribute the illness and the difficulties of which the plaintiff was afflicted and suffering.” The defendant’s objection to this question was overruled, and this ruling is assigned as error. The only objection urged to this question is, that there is no evidence that the plaintiff fell upon the curb-stone or any obstruction on the sidewalk. The abstract contains no statement that it is an abstract of all the testimony. It is true the abstract contains a certificate of the official reporter that the pages to which it is attached contain a true transcript of the short-hand notes taken by him, and a certificate of the judge that the- bill of exceptions contains all the evidence given and received on the trial of the cause. But there is nothing to show that the abstract is an abstract of all the evidence embraced in the reporter’s notes or in the bill of exceptions. It follows that the objection urged to the question under consideration cannot be sustained.

II. John Nichols, street commissioner of the defendant, was produced as a witness and testified that, pursuant to a resolution of the council, passed on the thirteenth of May after the accident, he repaired the sidewalk where the injury was sustained. He further testified as to the condition of the sidewalk at that time. Upon cross-examination he was asked to state the condition of the sidewalk in the Spring, or April, 1881, which was about the time the accident occured. This question was objected to as not cross-examination. The objection was sustained. The ruling was right. Testimony as to the condition of the sidewalk after the injury, furnished no basis for a cross-examination. as to tbe condition of tbe sidewalk at tbe time of tbe injury.

III. Dr. Witberell, a witness introduced by tbe plaintiff, was asked on cross-examination tbe following questions: “State whether a lady receiving injuries as I ^aye mentioned, by falling as I have stated, and sbe j-^g a gijgpi; hemorrhage, and after tbe lapse of a year she attends a dance, and after the dance a hemorrhage reappears, somewhat profusely, to tbe extent of four quarts, would you say it was negligence on tbe part of tbe party who received the injury, or would it be attributed to ordinary causes?” The plaintiff’s objection to this question was sustained, and^the ruling, it is claimed, is erroneous. Probably the witness, as an expert, might have given his opinion as to tbe causes of the hemorrhage. But clearly it was not competent for him to express an opinion as to whether it was caused by the plaintiff’s negligence. Tbe objection to the question was properly sustained.

IY. It is urged that tbe damages are excessive, and that verdict is not sustained by sufficient evidence, As tbe abstract does not purport to be an abstract of all tbe evidence, these objections cannot be considered.

Y. It is urged that tbe court erred in giving tbe second paragraph of tbe ninth instruction. No exceptions were taken to ^® instructions at the time they were given. Tbe verdict was returned on tbe 6th day of May. On tbe 9th day of May a motion for a new trial' was filed upon tbe ground, amongst others, that tbe court erred in giving tbe second paragraph of tbe ninth section of tbe charge. No ground of exception to tbe instruction was stated. Section 2789 of the Code provides: “Either party may take and file' exceptions to the charge or instructions given, or to the refusal to give any instruction offered, * * within three days after tbe verdict, and may include tbe same in a motion for a new trial, but in either case tbe exceptions shall specify the part of the charge or instruction objected to and the ground of the objection.” On the 11th day of May, five days after the verdict, the defendant filed exceptions to the instructions, stating the ground of objection. These exceptions were made too late and cannot be considered. "We reach this conclusion without regret, because it seems to us that the instruction is not vulnerable to the objection made.

YI. One ground of objection to the verdict is the alleged ' misconduct of the jury. This ground is supported by an affidavit as follows: “I, Charles Osborn, on oath depose and say that on May 4th, 1882, and upon 0f £he case of Charlotte Brandt v. Lyons City, I was present in the ante-room of the court-house of said county and heard one of the jurymen (his name I cannot state) discussing or talking about the evidence that had been produced in said action, in the presence of myself and other persons, in relation to said action; the exact words used in said conversation I cannot state.” This affidavit is altogether too indefinite to be made the basis of setting aside the verdict. The name of the juror is not given, and thus no opportunity is furnished to rebut the statements of the affidavit. "What was said is not stated, and we have no means of determining that it was improper or in any way prejudicial. The record discloses no error.

Affirmed.  