61 Iowa 359 | Iowa | 1883
• Let us see what the difficulty in: the casé at bar is. The train was backing westward to be coupled to a moving car, which, by reason of a defective break and an inclination in the track, or force of .the wind, had not remained stationary, as it should have done, but was moving eastward. The plaintiff was walking westward between the rails, just in advance of the train backing westward, and close by the draw-bar, intending to raise the link so'as to effect a coupling when the cars should come together. But seeing, that the car to which he was to couple was moving toward him, he concluded not to remain until the cars came together, and attempted to step out. lie might and, as the circumstances ■were, he should have come to this conclusion sooner, and put it immediately into execution. Had ho done so,, he would manifestly have succeeded. But just ahead of him was a ditch which was liable to cause him to stumble, and which did cause him to stumble. Had he seen it, or had he known that there was a ditch there, there would be much ground for contending that he was guilty of contributory negligence. But it does not appear that he saw the ditch, or knew that it was there. He wTas.-not bound to assume that .there was a. ditch there, nor are we quite prepared to say that he was justified in assuming absolutely that there was no ditcli there, nor obstacle of any kind. There was liable to be an obstacle. If the cars were approaching with considerable rapidity, and he waited until the last moment, in reliance upon the assumption that the ground was smooth and free from obstacles, he was, perhaps, guilty of contributory negligence. But the facts found do not necessarily show that he was, and that, too, if we should conclude that the jury meant that it was more
' As to whether the exception ■ was properly taken, we do not determine. In'.our opinion, no exception was riecéssáryi The’ object o'f an exception to an instruction is to lay the foundátion for an appeal, but, as wfe' have seen, the plaintiff was in no condition to appeal from the erroneous ruling made in giving 'the' instruction. >. He !coUld not appeal until' the case had been reversed upon the -defendant’s appeal, and remanded, and another ruling made of which the plaintiff could complain. - He now assigns as! error,'and'we think it the only error properly assignable, 'that the court erred ' in rendering judgment for the defendant upon the special' veidict, ■. In passing upon the motion for judgment-, the correct; ness! of the instruction as such was not drawn in issue. The question was as to whether the defendant/was’ entitled to judgment under the 'special verdict and the law. The de-' lendant cannot properly'-complain by saying that, if the instruction ■ had' béen .excépted to, perhaps'it would hot have been given. If it had not beeii given, the general verdict would have stood, and. that was against the defendant. A reversal wras granted, not so much because, in view'of the whole
Undoubtedly, in a case of this kind, we should be obliged to sustain the ruling of the court, if any good reason could be suggested or should occur to us for sustaining i-t. If it-was necessary in- the court below to assign reasons for sustaining the motion; and those reasons are not contained in the abstract, and any- good reason could be assigned, we would presume it was assigned, and sustain the ruling. But where no good reason-for sustaining the-motion-is suggested by-defendant’s counsel, and none occurs to us, and it appears to us that there can be. none, we are justified in saying that we think the court erred. ■ ■ • .
Reversed. '
SUPPLEMENTAL OPINION.
In a petition for rehearing, it is contended by the defendant that the opinion is inconsistent with that filed upon a former appeal, and reported in 55 Iowa, 121. The defendant quotes from that opinion the following words: “The special findings show the existence of facts constituting, under the above instruction, negligence on the part of the plaintiff sufficient to defeat the recovery * *' * *. The general verdict is, therefore, inconsistent with the special findings and the foregoing instruction, and for that reason, if for no other, it should have been set aside.” The defendant asks how the court can now hold that the court below “erred in rendering judgment for the defendant, upon the theory that the verdict did show contributory negligence?” The defendant’s difficulty arises- from a misunderstanding of the former opinion. We did not say in that opinion that the special findings under the law showed contributory negligence, but-merely that they showed it under the- instruction: Mr. Justice Day, who wrote the opinion, took pains to guard it, against misconstruction. He used these words: “ In what we have said we intimate no opinion as to-the correctness of
The defendant insists that we do not even now say that the instruction is erroneous.
We were not called upon to rule directly upon the correctness of the instruction, but only indirectly. We said, .in substance, that the special findings did not necessarily show contributory negligence. The • court below Raid, in substance, that such findings, if made, would necessarily show contributory negligence. It results that, in our opinion, the instruction was erroneous.
It only remains to be considered as to whether the plaintiff was bound by it, notwithstanding it was erroneous. The defendant insists that he was. Its position is that the plaintiff should have excepted and appealed..- We have the doctrine announced that a successful party in a jury trial is concluded by an erroneous instruction not excepted to by him, and not appealed from, and must not only lose his verdict and judgment, but have final judgment rendered against him, if the erroneous instruction would'lead to such a result. We think that the announcement of such a rule would not only surprise the profession, but would introduce a practice, which would be intolerably burdensome. The successful party would not necessarily know until the last moment whether an appeal was to be taken by the other party, nor would he know, until there was a decision against him, that there was to be a reversal. To be safe, he should always assume that the other party
But it is said that our ruling is inconsistent with Roberts v. Corbin, 28 Iowa, 355. The defendant’s counsel have quoted largely from the opinion in that case, and set out the lan-, guage as against 'the' language used in 'the opinion now in question.. But between that case and this is a radical differ-; ence. In that case there was a trial to the court and a finding of facts. : The court said: “ It is as though there Was a special, v.erdict of the jury; and the'single question was whether upon, these facts, (not controverted nor, doubted) the law was for the plaintiff or defendant.” The findings in that case were complete arid decisive, so far as' the facts were concerned. In the case at bar, the special findings, under our- view of the law, were incomplete, and determined nothing. The only real verdict was the general verdict, and when .that was Set aside by-reason of what may be called misconduct'of the jury, the facts were left undetermined.. To make the two cases parallel, the spécial findings in thé casé at bar should have bepn complete, and decisive, so as to call for judgment thereon. Under the, view'which the court below took of the law, they were of that, character, but under 'our view they were not. He thought that they necessarily showed'contributory negligence; and we. thought that they did not. .Under our view, there must be another trial, and the petition for a rehearing must be ■
Overruled.