184 Iowa 435 | Iowa | 1918
I. Plaintiff was injured by being caught between the ends of two cars, while engaged in making a coupling of a baggage car and passenger coach in the yards of appellant, and while acting as brakeman for appellant.
It is questionable whether complaints of appellant of overruling objections to testimony have a basis in the record. At any rate, these rulings are not likely to recur on retrial, and will be given no further consideration on this appeal.
II. A motion by defendant to direct verdict in its favor asserts:
(b) That that which injured him was a risk incident to plaintiff’s employment which he assumed.
(c)The evidence is insufficient to sustain a verdict against the defendant.
After this motion was overruled, testimony was put in for defendant, and the motion was not renewed. We have often held that, in such case, we can consider no point made in the motion to direct verdict, unless such point is otherwise sufficiently presented. The fact that the motion for new trial complains of the refusal to sustain the motion to direct is not such presentation. Since any error in ruling on the motion to direct is waived, the waiver is not obviated by an assertion in motion for new trial that the ruling on the motion to direct was erroneous.
2-b.
IY. Instruction 3 tells the jury it is conceded that plaintiff was in the employ of defendant when injured, and that the cars he sought to couple were equipped with automatic couplers; that, to recover, plaintiff must show, by a preponderance, that defendant was negligent in one or more of the ways complained of, that such negligence was the proximate cause of the injury, that plaintiff was not guilty of contributory negligence, and has been damaged in some amount; and that, if he has shown all these matters, he is entitled to a recovery, unless it further appears from the evidence that he assumed the risk of making or attempting to make the coupling at the time of the injury.
The exception is that this instruction has no support in the evidence, in this: The evidence shows conclusively that, just before the locomotive and car were moved, and while the same were being moved, to make the coupling complained of, the bell was ringing, giving warning of the motion of the train, thereby making plaintiff guilty of iiegligence that caused his own injury.
The exception is that the instruction submits whether or not plaintiff knew the car couplers, or either of them, were out of order, when plaintiff’s own testimony shows conclusively that they were out of order, and had been for some time prior to the accident.
It is undeniable that plaintiff had known, for some time before he was injured, that some of the appliances he had to work with in making this coupling were seriously defective, and could not but appreciate that it might be dangerous to use them.
This instruction tells the jury what to do if it finds
Instruction 15 and the exception thereto are, in effect, in the same condition that surrounds the giving of Instruction 14. The jury should have been told that plaintiff had this knowledge, and that all it had to decide was whether there was a promise of the conductor and a breach of the promise that would avoid the effect of having such knowledge ; and that it could find for plaintiff only if such a promise was made, relied upon, and not kept.
VI. In view of the determination, we have no 'occasion to consider the contention that plaintiff may not recover because he acted in violation of rules.
For the error in giving Instructions 14 and 15, the cause must be — Reversed and remanded.