95 Iowa 545 | Iowa | 1895
On the trial, in rebuttal, plaintiff was permitted to. testify, against objections, that she had no other interest in the company than as an employe receiving a salary. The testimony should have been excluded. Under the single averment it enabled her to recover under either fact, — that of being a lessee, or of being an employe of the lessee; and the law of recovery is in the two cases, often at least, quite different, and must have been so in this case. With the status of the plaintiff settled as to the contract, — that is, that she was one of the lessees, — we may better consider the question as toiler right to recover under the facts.
4 We may now inquire as to the liability of defendants for negligence in the construction of the stage, by making therein the trapdoor. This door was plainly visible when the house was let to the company. There is no claim of any concealments, nor that the house was not in the condition called for by the lease or contract. It is said that the plaintiff did not know of the door. But that is not the fault of the defendants. Whoever acted for the company in securing the house did know or could have known of it, and the fault, if any there be, because of her not knowing, is that of the company. The renting of the theater in that condition was the free act of the company. It was as conclusively bound by the known conditions of the stage as if it had been of its own construction. Of course, we are not speaking except as to the parties to the contract. No other question is involved under the pleadings. We have carefully examined every authority cited, and many others, and have found no parallel case. We are referred to Joyce v. Martin, 10 Atl. Rep. R. I.) 620; Clifford v. Cotton Mills, 15 N. E. Rep. (Mass.) 84; Swords v. Edgar, 59 N. Y. 28; Dalay v. Savage, 145 Mass. 38, 12 N. E. Rep. 841. It will be seen that all
We think that it also appears affirmatively from the record that there was no negligence in the construction of the stage. The court held that, as a matter of law, if the opening in the stage was provided with a door which could have been closed, there was no negligence in failing to provide a rail or guard in addition to the door, and that in such a case there could be negligence only in failing to provide sufficient light. The jury returned this special finding: “Was the stairway provided with a door which could have been closed? Ans. We believe that at the time of the accident there was a trapdoor,' but open, and we are of the opinion that, from the fact that said trapdoor had not been closed for a long time previous to the accident, it was not in good condition to close.” No other fact supports the finding. The company had used the stage for six nights, and each day, with the door open, and no one attempted to close it, nor asked that it be closed; nor does it appear that there was even a thought that it could not be closed. It appears that it was nearly always open, but there is an affirmative showing that it could be closed. The opinion expressed by the jury, based on the one fact, is not entitled to the legal effect of a special finding. There was surely a door; surely evidence that it could be closed; and surely none that it could not be. A finding against such a condition of the record is of no moment. Taking the law of the case as given, that, if the opening was provided with a door that could be closed, there was no negligence in the construction, and that branch of the case seems settled, and we may pass to the question of negligence in failing to ' provide sufficient lights.
There is a dispute as to how much light there was at the time of the accident. The jury found that, in