70 Iowa 561 | Iowa | 1887
A recovery is asked in the petition on the ground of the negligence of the defendant. The negligence,
I. The deceased was an employe, and therefore the fact that there was an accident and he was injured is not suffi-
II. Evidence was introduced by the plaintiff which had a possible tendency to show that the train was running at a
III. The defendant introduced evidence tending to show that the track at the time of the trial was in the same condition
IV. The plaintiff asked an expert the following question: “ Suppose the fact to bo that it [the track] was so badly out
V. There was some evidence tending to show that there was a slight crack in the flange which broke, and therefore -we do not think the court erred in instructing the jury that “ if the train left the track by reason of the breaking of the flange of the wheel, unless such breaking was caused solely by the bad repair of the track,” defendant would not be liable.
The defendant asked the court to instruct the jury as follows: “ Should you find from the testimony that the track was in a reasonably safe condition to operate the train upon at a rate of from fifteen to twenty miles an hour, and that the track did not spread at the place where the trucks left the track, then you may fairlyinfer that the accident was not caused by reason of the want of spikes, nor by reason of the want of ballast.” It follows from what we have heretofore 'said that this instruction should have been given.
‘ YI. The court instructed the jury as follows: “But if you are satisfied from the evidence that the accident in ques-
VII. The defendant introduced evidence showing that the deceased applied for and was hired to perform the duties
Till. Counsel for the defendant contend that the defendant is not liable because it was not operating the road at the time the accident occurred. This question has been argued at length, both in print and at bar, and we regret to say that we are not agreed in relation thereto; and, as the case must be reversed on other grounds, we think our proper course is to express no opinion as to the question above stated.
It is possible we have not alluded to all the errors discussed by counsel, but we think we have, as to those which seem to us to be the most important.
Reversed.