I concur in the conclusion reached, but do not believe it should be conceded that the testimony of Sam Van that he had been paid for damage done to his wagon is objectionable. The answer contains a general denial of the allegations of the complaint which placed in issue responsibility for the collision which caused the runaway, and resulted in respondent's injury. Payment of damage resulting from the collision, if made by appellant, would be in the nature of an admission that appellant's agent caused it, and is material.
The court properly struck out the answer containing the information that the insurance company had paid for the damage done to the wagon, because it was not shown the payment was made for appellant's benefit, nor with his acquiescence, and properly instructed the jury, at the close of the case, to disregard all evidence which had been stricken. The request was made by appellant's counsel that the court so instruct the jury at the time the answer was given and stricken, and on page 27 of their brief, commenting on this incident, said:
"If the court had instructed the jury to disregard the answer, it would not have cured the error and harm done by its being before them."
A litigant cannot be allowed to gamble on the result of an error committed of which he is fully aware. It was the duty of counsel for appellant to abide by the court's ruling in striking the answer, and instructing the jury to disregard it, or, if they believed that did not adequately protect their client, to move that the jury be discharged and a mistrial declared. *Page 360