Fisk v. Chicago, Milwaukee & St. Paul Railway Co., 83 Iowa 253

Fisk v. Chicago, Milwaukee & St. Paul Railway Co.

83 Iowa 253

| Iowa | 1891

Granger, J.

1. practice in supreme court: appeal error without prejudice. I. The complaints by the appellant are as to certain instructions given relative to contributory negligence, the submission special interrogatories to the jury, and the admission and exclusion of evidence. The appellee, however, insists that, notwithstanding the errors complained of, the judgment must stand because of the special findings and instructions of which complaint is not made. The only instruction of the series given by the court in which the facts are stated on which recovery can be had by the plaintiff is number 7, as follows: al. If from the evidence you find that defendant placed a freight car •on the highway crossing in question, or near the traveled track, or portion thereof, and left the same in such position for an unreasonable length of time, and that said car so placed was an object calculated to frighten horses of ordinary gentleness, passing along and over said highway across said crossing, and that .said Bolton’s team was one of ordinary gentleness, and that he was at the time in question driving said team along said highway and over said crossing in an ordinarily careful manner, and that, while so driving the same, they were frightened at said car, and became unmanageable, and ran away with said Bolton, and he was thrown out and injured, then the defendant is liable for the damages to said Bolton directly caused by such injuries, unless said Bolton’s own negligence ■ contributed to produce such injuries.”

The correctness of this instruction as a statement ■ of the law is not questioned in this court, and • counsel in argument agree that it must stand unquestioned as -.the law of the case. It is not, however, to be regarded *256as approved by this court. It is the rule, followed by this court, that the jury must regard the instructions, given, even if incorrect, and for a failure to do so a new trial will be granted. Boyer v. Riley, 41 Iowa, 13. With these facts and rules of law in mind, we may readily dispose of the principal controversy in the case. By the instruction the jury is told that to find for the plaintiff it must find that the team driven by Bolton “was one of ordinary gentleness.” The jury did not find so, but, on the contrary, found that it was not one of ordinary gentleness. (See special findings.) This finding of fact was in no way influenced by the instructions complained of by the appellant, and, had such instructions been in accord with the appellant’s view, the result could not have been different. If, then, the instructions are erroneous, the error is without prejudice. With this view and our conclusions as to the remaining questions in the case, it is not necessary to determine the correctness of the instructions complained of.

2. ___._ II. The court submitted to the jury twenty interrogatories at the request of the defendant, to which answers- were returned. The appellant-now complains that it was error to submit them. The record shows that at the time the plaintiff objected to the submission of interrogatories numbers 10, 11 and 12, which, with the answers, are as follows: “ Interrogatory 10. At what place were Bolton’s injuries received, and how were they caused, and how far from the tracks? A. At roadside, near crossing, by being thrown from his buggy onto fence post and ground, about one hundred feet north of tracks. ,

“ Interrogatory 11. Was Bolton injured before his wagon wheels struck the tie by the roadside? A. No.

“ Interrogatory 12. If Bolton’s wagon wheels had not struck the tie by the roadside, and thrown him *257against the fence wire, would he have received the injuries complained of? A. No..”

It must be seen at a glance that these questions could in no way affect or- change the result under our holding in the first division of the opinion. Inasmuch as objection was made to a part of the questions, and not to others, at the time of submission, we must assume that the submission was by consent,implied, if not expressed.

III. It is said that there is no testimony as a basis for the submission of interrogatory number 13, but that is a misapprehension, as it is in evidence that Mr. Bolton said that the team was “always afraid of a car standing still.” There is also other evidence to the same point. The evidence complained of, both as to exclusion and admission, was directed to points other than that held to be conclusive of the case, and need not be considered.

The judgment is affirmed.