38 Iowa 581 | Iowa | 1874
— -The only evidence in the case is that offered by the defendant. It shows that a train of freight cars of considerable length, came into the depot of defendant’s road at Waveriy, ran up to a switch and backed down on a side track,
Among other instructions given by the court was the following;
“ 7th. If the defendant’s employes saw or might have seen by the exercise of reasonable care and diligence on their part, the mare in time to have stopped the train if they had made a proper use of the appliances, therefor; attached to- the train in question, and failed to do so, it would be negligence for which defendant would be liable.”
The giving of this instruction is-- assigned' as error, for the reason that there was no evidence to which it was applicable or that would justify the court in giving it. We are constrained to concur with this view. There certainly is no evidence in the case tending to show that the employes on the train saw the mare before she was- struck, or that by the exer
Nothing that the men on the train could have done would have avoided the collision, as the evidence clearly shows. The instruction therefore was erroneous, to the defendant’s preju- ' dice, and -the judgment must be reversed. See Smith v. The C., R. I. & P. R. Co., 34 Iowa, 506; Ocheltree v. Carl, 23 Iowa, 395; The State v. Arthur, Id., 430; Byington v. McCadden, 34 Id., 216 ; Rindskoff, Bro. & Co. v. Curran, Id., 325; Plaster v. Ill. C. R. Co., 35 Iowa, 449; Cleveland v. Chicago & N. W. R’y Co., Ib. 220.