29 Iowa 531 | Iowa | 1870
Upon the trial of the cause, defendant, against the objection of plaintiff, was permitted to introduce evidence to prove that his arm was not fractured. The admission of this evidence is the ground of the first objection of plaintiff, who insists that the evidence was inadmissible, because the fact that defendant’s arm was fractured is admitted by the pleadings, and cannot be contradicted by the evidence. The view of the court seems to have been, that, in the trial of the action upon the cross demand, „the evidence was admissible, but was not competent upon the trial of plaintiff’s claim, regarding the case as involving, in fact, two separate and distinct trials upon different evidence. The court, in carrying out this view, instructed the jury to consider plaintiff’s suit and defendant’s cross demand separately, and that in the suit upon plaintiff’s claim it is admitted) and must be taken as true, that
The view thus taken by the court cannot be sustained. The trial upon plaintiff’s claim and defendant’s cross demand was, in fact, but one trial. The issues as to these separate demands of the parties were distinct and different, but they constituted the issues oí; one case, upon which there could be but one trial. It is impossible to concede that one party could have been held to admit a given fact, when it applied to his adversary’s claim, and yet deny it when applied to his own, and this, too, in the same trial and upon the same issue. Parties in their pleadings and evidence must be held to a proper consistency, and not permitted to affirm and deny a fact in the same case. We know of no rules of the law that will sanction the view and ruling of the court below. It may further be observed, in order to show the incorrectness’ of the ruling of the court below, that a direct issue is formed upon the cross demand as to the plaintiff’s negligence in reducing the fracture, thus involving its existence, which is not put in issue but admitted by defendant. He certainly cannot be permitted to contradict this admission by evidence.
The effect of the ruling in question upon the case cannot be understood without a further statement of facts, which will exhibit a rather curious result. It seems plaintiff claimed, that, as a physical fact, the fracture could not have been reduced if the shoulder joint was really dislocated. He insisted, arguendo, that the arm was fractured, a fact admitted by the pleadings, and that the fracture was reduced, therefore there could have been
Other objections were made to the ruling of the court below, based upon instruction given. To some of these instructions no exceptions seemed to have been taken, and objections thereto cannot be considered. As the judgment of the 'court below, for the errors above pointed out, must be reversed, further objections need not be noticed, though saved by proper exceptions.
Reversed.