38 Iowa 515 | Iowa | 1874
— I. We will coniine our discussion to the points presented in the assignment of errors and discussed in the argument of defendant’s counsel. The others we are authorized to presume are waived.
II. It is first insisted that the verdict is not supported by the evidence.. Under the familiar and often announced rules of this court we find no such want of proof as will authorize us to disturb the judgment.
III. It is next urged that the verdict is contrary to the law requiring the exercise of care on the part of plaintiff to entitle him to recover. Upon the point involving the care to be exercised by each party, and upon the doctrine of contributory negligence which would defeat plaintiff’s right of action, the instructions of the court to the jury are correct, and we do not understand that defendant’s counsel complained of them. We do not think that the finding of the jury under the rules thus given to them is so in conflict with the evidence that it ought to have been set aside by the Circuit Court. These points, which involve the consideration of the evidence, demand, according to our custom, no further consideration.
The eleventh instruction holds that if the plaintiff did not hear or see the cars, but knew where the track was, and by the exercise of ordinary care could have seen or heard the train, and, failing to exercise such care, attempted to cross the railroad track without using precaution to satisfy himself of safety, he was negligent and cannot recover. These and other instructions taken in connection with the one objected to, very clearly lay down the rule contended for by defendant’s counsel, which is announced in Warner v. R. R. Co., 44 N. Y., 465, in these words: “ The citizen must yield the right of way at the crossing. The traveler who should drive his carriage upon the track when he saw the approach of a train would bring the injury on himself, if a collision occurred, and would have no just claim for the recovery of damages.”
We do not think the instruction objected to by counsel is erroneous.
No other questions are presented or discussed in the briefs of counsel. We are required to consider none but those which are brought to our attention in argument. Finding no error in this record we direct that the judgment he
Affirmed.