36 Iowa 140 | Iowa | 1872
— I. The court gave its instructions to the jury, all in a single paragraph, though covering several pages. “To all of which instructions and each of them the plaintiff then and there excepted.” The appellant’s counsel, now and here, point out certain sentences of the instruction which they claim are erroneous. This they cannot do under the exception taken by them, as we have before frequently held. See Dav. Gas L. & C. Co. v. City of Dav., 13 Iowa, 229; and see Hammond’s Digest, § 53, p. 497, and cases there cited. But, we may properly say further, that however objectionable the specified sentences may have been, if given alone, they are not objectionable at all when taken, as they are stated, in connection with the instruction entire.
II. It is next assigned that the verdict is contrary to the evidence. While a verdict for the plaintiff upon the evidence would have been more satisfactory to us, yet we cannot say that the finding is so manifestly against the weight of evidence as to justify us, under the rules in such cases, in setting the verdict aside. It was surely within the power of the plaintiff to prove, or at least for himself to testify to, the precise time that he did volunteer. The jury may have given great weight to his failure to do so.
Affirmed.
