79 Iowa 582 | Iowa | 1890
It must be conceded that in so far as the instruction attempts to express the law it is correct. The criticism upon it is: “It is open to much the same objections as the third one; it does not set forth all the elements of defense.” The argument then proceeds upon that theory, and says : “It takes no account of any duty or obligation on the part of the plaintiffs towards the care of the cattle, unless he had in fact taken exclusive charge of them; and leaves the inference that the plaintiff's could, by refusing to consent to any act of defendant in trying to preserve the cattle, and, though present, refraining from exercising exclusive control over them when unloaded, cast the entire burden and responsibility as to their preservation on the defendant; and, in that part of it as to the claimed request as to placing cars next the coal sheds, it simply says such failure so to place them would not, as a matter of law, be negligence.” Looking to other instructions given, the grounds of complaint are covered in every essential particular. The liability of the defendant is placed clearly on its negligence in placing the cattle in an insecure place, and the jury are expressly told that, if the loss did not occur in consequence of such negligence, the defendant is not liable.
It is urged that no rule is given in this instruction “as to loss by the act of God.” That is true, but the rule is given in the third instruction. As illustrating the complaints generally as to the instructions, it is said this instruction gives no rule as to the burden of proof. But the following, as taken from other instructions on the burden of proof in the case, are given: “Par. 3. Such are the issues made by the parties by the pleadings herein, and you are instructed that the burden is upon the plaintiffs, in order to entitle them to recover, to
IY. The defendant asked some nineteen different instructions, some of which are entirely inapplicable to the real issue being tried, and many are a restatement of those given by the court, in different language and form, the giving of which would have been no more advantageous to the defendant than those given. To set out the instructions asked, and comment upon the action of the court in refusing them, would serve no good purpose. We unite in saying that the case was fairly submitted by the instructions given. The testimony fully sustains the verdict. Affirmed.