120 Iowa 147 | Iowa | 1903
Plaintiff, while in the employ of the defendant as a driver of mules in an entry of defendant’s coal mine, received the injuries of which he complains, while riding on a car in the mine, in coming in contact with the roof or side of the entry. The negligence charged is that the entry was not of sufficient height, in that it was but three feet and five inches high, while it should have been at least five feet, and was not properly “brushed,” in that a rock from the top and north side of said entry projected, to a point within three feet of the center of the track laid therein on which the cars ran, while on the other side the distance was something over five feet — in other words, that the projecting rock hung over the track from
Several errors are assigned as to rulings on evidence, and in the giving and the refusal to give certain instructions asked by the defendant. Some other alleged errors occurring during the trial will also be considered.
First, then, as to the rulings on evidence: We shall not mention all, as twenty or more are assigned, some of which involve questions which have long been regarded as settled.
Witnesses were permitted to testify as to declara-
Other witnesses were permitted to testify to the custom in that particular mining district as to the height and width of entries. It was what is known as a “low
These are all the rulings on evidence which we deem it necessary to consider.
II. Defendant asked something like ten instructions, which were each and all refused by the court. It also complains of three instructions given by the trial court on
Complaint is made of the court’s refusal to give an instruction to the effect that no custom as to the height of entries had been established in the case. This complaint is clearly without merit, for a great deal of evidence was introduced on this proposition by both parties.
Refusal to give an instruction directing the jury to disregard certain statements said to have been made by appellant’s counsel in argument is complained of. There is no proper record showing that statements were made which would have justified such an instruction. In so far as we have any record, it appears that whatever remarks were made were in response to statements made in argument by defendant’s counsel.
III. An instruction given by the court with reference to the effect to be given evidence regarding a custom prevailing in the district as to the height of the entries, and the manner of constructing them, is complained of.
Another instruction is said to be erroneous because it assumes a state of facts which were in dispute to be true. There is no merit in the complaint, for there was no such assumption.
The last instruction related to damages for future pain and suffering. It is sustained by the following among other cases: Bailey v. Centerville, 108 Iowa, 28; Kendall v. City of Albia, 73 Iowa, 246. There was evidence as to future pain and suffering.
IY. In the motion for a new trial, complaint is made of misconduct of counsel in argument. We have already covered this point in another part of the opinion, and need not consider the matter here.
Lastly, it is argued that the verdict is contrary to the instruction and unsupported by the evidence. We shall not set out the evidence in full. There was a conflict as to
Appellant’s motion to strike appellee’s abstract is overruled.
There is' no reversible error, and the judgment is AEEIRMED.