72 Iowa 645 | Iowa | 1887
The negligence stated in the petition is— First, that the defendant negligently failed to block the space between the main and guard rails of its track, and allowed “ said space upon its road in and about What Cheer, Iowa, to remain open without blocks,” and, Second, that it permitted the blocks in said space “ to become worthless, worn out, and to become in such a condition as to allow the feet of its employes to be liable to be caught in such space while attending to their duties upon its (defendant’s) yard” in coupling and uncoupling cars. The court instructed the jury as follows; “ If you find that a block had been placed by defendant between said rails; and further find it established by a preponderance of the evidence that such block was so placed, or so worn, or out of repair, as to be dangerous to brakemen coupling or uncoupling cars, in the exercise of ordinary care; and you further so find that defendant either knew of the condition of such block, or that such condition, if established, had existed for such a length of time, and was of such character, as that defendant ought, in the exercise of ordinary care, to have known it, and to have repaired or remedied the defect, if any, — -then, and in such case, the negligence of the defendant charged in the petition and amendment thereto would be sufficiently established, within the meaning of the law. Bat if you fail to so find that the block was in such dangerous condition, or that defendant had such knowledge, or that such time had elapsed, then the negligence of defendant would not be established, and your verdict should be for defendant.”
Reversed.