(after stating the facts.) Counsel for appellant first contends that the demurrer to the complaint should have been sustained. The record shows that the cause proceeded to a final adjudication without the judgment of the court on the demurrer. Hence it was waived, and can not now be considered by this court. Kiernan v. Blackwell, 27 Ark. 235.
2. Counsel for appellant insists that there was error in the judgment of the circuit court in refusing to grant a new trial on the ground of surprise. The facts relied on by counsel to sustain his motion in this respect are fully set out in his affidavit attached to his motion for a new trial, and the reason for the refusal of the court to grant it is set out in the judgment of the court.
Counsel relied upon the case of Mutual Life Insurance Company v. Parrish, 66 Ark. 612. In that case the court held: “Where a party is surprised at the trial by testimony he knows to be false, and wishes to rebut it, it is his duty to ask a postponement or suspension of the trial till he can procure rebutting evidence; but if he does not know whether the testimony is true or false, nor whether he can rebut it, he will not be required to move for a continuance before he can ask for a new trial.”
The state of facts as detailed by counsel himself does not bring this case within the exception. During the progress of the trial, at his request, the court permitted an examination of the physical condition of appellee’s leg to be made by physicians selected by counsel for appellant. They testified that appellee’s leg had not been broken, and that his injury was not permanent. Their examination disclosed to appellant’s counsel as much information as he possessed at the time of filing his motion for a new trial. Instead of then asking for a continuance, counsel took his chances of a verdict and must now abide his election. Besides, the result of an examination of the injured leg with an X-ray machine would not be conclusive evidence, and at most would only be evidence cumulative of the testimony of Drs. Knight and Youngblood. Miller v. Mintun, 73 Ark. 183.
The motion does not show what the testimony of Dr. Boen will be, and, for aught we know, his evidence might corroborate that of Dr. Aeree. In any event it could be only cumulative.
Counsel for appellant also insists that the court erred in giving instruction No. 6 to the jury.*
In the case of St. Louis, I. M. & S. Ry. Co. v. Dooley, 77 .Ark. 561, the court said: “The bare permission of the owner of
private grounds to persons to enter upon his premises does not render him liable for injuries received by them on account of the condition of the premises. But if he expressly or impliedly invites, induces or leads them to come upon his premises, he is liable in damages to them — they using due care — for injuries occasioned by the unsafe condition of the premises, if such condition was the result of his failure to use ordinary care to prevent it, and he failed to give timely notice thereof to them or the public.”
This principle is applicable to the present case. Appellee was upon appellant’s premises by invitation, and if appellant’s servant in charge of the yard knew of the unsafe condition of the pile of ties and directed appellee to unload thereon — appellee at the time using due care — this was actionable negligence.
The amount of the damages awarded was in the province of the jury. They show by their verdict that they believed appellee’s testimony in that regard. Taking into consideration appellee’s actual expenses, the time he was confined to his bed, the pain and suffering he testified he endured, we cannot say that the verdict was excessive.
Finding no prejudicial error in the record, the judgment is affirmed.
Instruction No. 6 was as follows:
“If 'you find from a preponderance of the evidence that the pile of ties in question was in an unsafe condition, and the agent of defendant company was in position to observe and know that fact, and. said agent of said defendant company directed said plaintiff to unload his ties upon the pile of ties in question, and plaintiff was using ordinary care and prudence while unloading or attempting to unload said ties, and by reason of the negligence or wrongful acts of said company or its agents plaintiff sustained an.injury, then you will find for the plaintiff.” (Rep.)