69 Iowa 627 | Iowa | 1886
Lead Opinion
The direet evidence also shows that no time was lost after the outcries were first heard by Weeks. Weeks testified as follows: “ Heard him [Ford] holler. I set a brake, and gave Mr. Butts [the fireman] signals for him to stop. As soon as I heard him holler I set the brake.” The fireman testified as follows: “We got a signal to stop, and we stopped. * * * At the time I got the signal to stop I was looking out for signals, and was paying attention to nothing else. The engineer was paying attention to what was his business, and that was to move the engine and stop her. * * * Mr. Weeks put on the brakes. I saw him run for the brake. After Weeks gave the signal I don’t think that the train ran more than a ear-length. It was stopped as soon as we could stop it.” The engineer testified as follows: “ Question. I believe you said a train running at that rate of speed would run about a car-length when you undertook to stop. Is that right? Answer. Yes, sir. Q. Did this run more than that distance? A. I don’t think it did. Q. It was stopped as soon as it eould be? A. Yes, sir.” There was no direct evidence to the contrary, and the question is as to whether there was any proven circumstance from which an inference might be drawn that should be regarded as tending to rebut the direct evidence. The plaintiff contends that there was, to-wit, the distance which the cars ran after the outcries were heard by others.
The unfavorableness of Weeks’ situation for hearing the outcries was due to facts which, remain to be stated. The moving portion of the train, it appears, consisted of six or seven cars, and Weeks stood on the third from the engine.
One theory of the plaintiff’s counsel is that Weeks stood and listened to Ford’s outcries, knowing that lie was in distress, until it was.too late to prevent the cars from running over him. Such conduct would have been evidence of the deepest malice, and yet there is no evidence or pretense that Weeks entertained other than kind -feelings towards his co-employe and fellow brakeman. It may be that Weeks should have given the signal to stop before he set the brake; but it is not shown in evidence -that he should, nor is it 'so claimed in argument. A little time was necessarily consumed
Reversed.
Dissenting Opinion
dissenting. — In my judgment the foregoing opinion of the majority of the court cannot be read with attention without producing a settled conviction in the mind of thfe reader that there was evidence tending to show negligence on the part of the intestate’s co-employes which did authorize the jury, in the exercise of their discretion, without bias, passion or prejudice, to find for plaintiff upon the issue involving defendant’s negligence. Indeed, I think it is both directly and inferentialy admitted'in the majority opinion that evidence of negligence of defendant was before the jury. It is directly admitted that there was some evidence tending to show that the cars moved, after the outcries of the intestate were heard by the by-standers, a distance indicating that they were not stopped with such promptness as proper care required, if the brakeman heard
The argument of the majority opinion upon the question of the insufficiency of the evidence to show defendant’s negligence is astute, critical and of great ability. It seems to me that when there is such absence of evidence as authorizes a court to set aside a verdict, we ought to see it- without having our judicial vision strengthened by keen and critical argumentation. The necessity for such an argument shows conclusively that there is evidence which the argument exhausts itself in attempting to deny. That plain and clear absence of proof which requires us to reverse a judgment for want of evidence to support the verdict cannot exist, when it is necessary, in order to establish it, to resort to fine and acute argument. The argument might, with propriety, be addressed to the jury, but ought not to be the lever used to overthrow its verdict. In my opinion the judgment of the circuit court ought to be affirmed.
I am authorized to announce that Mr. Justice Rotiirook concurs in this dissent.
Rehearing
opinion on rehearing.
After the foregoing opinions were filed, a peti-
The engineer testified that he received the signal to stop from the fireman; that he did not see the deceased at the time, and did not hear his outcry, or know that he was in peril; and that tlie signal communicated to him did not indicate that there was any emergency that required tbe sudden stopping of tbe train. lie accordingly did not reverse tlie
It must be borne in mind that the general verdict was found on the theory that the train-men did not do all that reasonably could have been done to stop the train after they actually heard the outcries of deceased, and discovered his peril, and not upon the theory that they were negligent in not sooner hearing the cries or discovering his peril. This is shown beyond question by the special findings. If, then, the brakeman was negligent after he actually heard the outcries, and discovered the peril, his negligence consisted in the
The jury were required, in effect, by the interrogatories, to determine which of these was supported by the evidence. They were required to determine whether the fireman or the brakeman was negligent, and, if so, in what his negligence consisted. But it cannot be said that they have determined that question. Their finding was not that either or both of them had been negligent, but that one or the other had acted negligently. It does not determine that the brakeman was negligent in not giving a signal that would indicate the existence of some emergency which required that the train be stopped at once, or in setting the brakes before giving the signal to stop. Neither does it determine that the fireman was negligent in omitting to communicate the proper signal to the engineer. Whether a particular act or omission amounts to negligence depends upon the circumstances under which it occurred. The answer to the question whether a party has acted negligently is in the nature of a deduction or conclusion drawn from the circumstances proven, and it is generally the province of the jury to draw that conclusion; and, if the conclusion reached by the jury can be reasonably drawn from the circumstances, the court ought not to interfere with it, even though the opposite conclusion appears to it to be the more reasonable. But when the general conclusion reached appears to the court to be wrong, and it is shown by the special findings of the jury that they are unable to assign
The former opinion will be adhered to.