138 Iowa 664 | Iowa | 1908
This is the second appeal in this case. The opinion on the first appeal is reported in 131 Iowa, 340, where a statement of the facts may be found. On the former appeal we held that the plaintiff’s demurrer to the answer should have been sustained, and reversed the case and remanded it for further proceedings not inconsistent with the opinion. On the last trial in the district court a demurrer to the same subject-matter held demurrable in the former opinion was sustained, and the appellant assigns the ruling as error. Counsel for appellants concede in argument that the ruling is governed by the former opinion, if the same is adhered to, and do no more than to file a brief of points covering their contentions relative thereto. We still think the rule there announced the correct one, and that the demurrer herein was properly sustained. See McGuire v. Railway, 131 Iowa, 340.
It is not seriously claimed that this amendment to the petition was not filed at the close of the evidence and before argument was begun, but it is contended that it was filed without leave of court and without the knowledge of appellant’s counsel. It appears, however, that the filing was regularly entered on the notice book, and that it was before the trial judge when his instructions were prepared. It also appears that appellants’ counsel either construed the original petition as charging practically the same negligence as the amendment, or saw the amendment before the court’s instructions were prepared, for they requested an instruction, which was in the following language: ■“ There is but one charge of negligence against the defendant in this case to be considered by the jury. That is the charge that defendants’ engineer, Gilbert, negligently backed the engine in question against plaintiff while plaintiff was between the engine and car in question trying to turn the angle cock on the car in question. If you find that said Gilbert did not negligently back said engine against the plaintiff while plaintiff was thus trying to turn the angle cock, your verdict must be for defendant.” It being very clear that the amendment was filed in open court during the progress of the trial, that it was properly entered on the notice book, that it was before the trial court and embodied in its instructions, and that it presented an issue that the appellants at least claimed was in the case, formal leave to file the same was not necessary. The motion to strike must be, and it is, overruled.
There was no error in the twentieth instruction given by the court. It simply told the jury that, if the plaintiff could not move the angle cock by reaching under the drawbar, he
Instructions 1, 2 and 3 y2, asked by the appellants, were fairly embodied in those given by the court. Instructions 4 and 5, asked by appellants, were properly refused because of the amendment to the petition. The closing argument by Mr. Howell, while not to be commended, does not demand a reversal.
We have given the evidence in the record careful consideration, and reach the conclusion that it is sufficient to sustain the finding of negligence on the part of the appellants and the finding that the plaintiff was not negligent.
The judgment is therefore affirmed.