31 Iowa 373 | Iowa | 1871
This is, substantially, all the evidence, and in our opinion it is not sufficient to justify a verdict for the plaintiff. The fact that the bars were down or the boards off the fence would not, under our statute, constitute any ground for the plaintiff’s recovery in this action; and under the rule recognized and applied in Aylesworth v. The C. R. I. and P. R. R. Co., 30 Iowa, 459, would not, without proof of knowledge, or means of it, that'the fence was out of repair, constitute a ground for the recovery of the value of the horses killed by the same accident.
It is argued by appellee’s counsel, that the engineer was already making efforts to pass the horses at the time the conductor directed him to do so; admit this and still it does not help the plaintiff’s case, since it was within the power and duty of the deceased to have given his direction in the time and manner to avoid the accident if it were possible. But suppose the accident had resulted differently, so that the engineer had been killed and the conductor survived. In such case, if the line of conduct pursued was negligent or careless, the administrator of the engineer would have had a clear cause of action, since the engineer was acting under the express direction of his superior officer; and this being so, it must follow that this action cannot be maintained.
We therefore avail ourselves of this occasion to correct what we understand to be a very general misapprehension on the part of district and circuit judges in respect to the rule as to new trials in the nisi prius courts. This court has repeatedly declared the rule for itself (and such is the rule in most appellate tribunals), that where the evidence is conflicting and the nisi prius court has overruled a motion for a new trial, grounded upon the insufficiency of the evidence, that we will not interfere. And this because, first, the jury have found the verdict and given credit to the witnesses on the one side of the conflict; second, the judge, who also heard the testimony from the mouths of the witnesses, and weighed the same in the balance of his more cultured and accurate legal judgment, has, by overruling the motion, given his approval and indorsement to the verdict; and third, this court can never have the benefit. of observing the conduct and deportment of the witnesses while testifying, nor even the peculiarity of their expressions, but generally only the substance of their testimony and often in the language of the attorneys interested in the cause. A mention of these considerations upon which the rule for the appellate courts is (in part) founded, is sufficient to show that the rule ought not and does not have any application whatever to the nisi prims courts. Those courts ought to independently exercise their power to grant new trials, and, with entire freedom from the rule
We have been led to these suggestions by reason of intimations from some of the district and circuit judges that they applied the rule of the supreme court in deciding motions for new trials before them; and also from a conviction we have that those judges often manifest an undue delicacy and restraint in the exercise of their power to grant new trials.
The judgment of the circuit court in this case is
Reversed.