133 Iowa 315 | Iowa | 1907
This is the second appeal in this case. The opinion on the first appeal will be found in 127 Iowa, 580, where a full statement of' the facts will be found, and we need not repeat them. On the second trial there was a judgment against Higman & Skinner Company and James P. and T. S. Martin, and the Martins alone appeal. The lease from the Martins to Higman & Skinner Company contained this clause: “ And it is further covenanted and agreed by the parties aforesaid that said lessee to have the right in common with other tenants of said building to the use of the said freight elevator in said building.” The Mar
The real contention of the appellants is that they were not in control of the elevator and building at the time of the accident, and around this thought they group their contentions for error in the trial. The evidence on the question of their control of the elevator is practically the same as was presented on the former appeal, and we then held that it was sufficient to take the' case to the jury. We find no reason for reaching a different conclusion now. The same answer may be made to the claim that the plaintiff was guilty of contributory negligence. The jury found otherwise, and •we have no disposition to interfere with the finding. See 127 Iowa, 580. Some complaint of the instructions is made in argument, but we think every question raised on this appeal, except the question of the right to reform the lease, is settled by the former opinion which is the, law of the case. The appellee’s motion to strike the appellant’s abstract and the amendment thereto is overruled.
The appellant’s motion to strike the. appellee’s denial. and amendment to abstract is overruled, but the cost of print: ing twenty pages thereof will be taxed to the appellee. W.e find no ground for a reversal, and the judgment is affirmed.