55 Iowa 192 | Iowa | 1880
— I. The plaintiff was employed as a switchman at defendant’s station in Cedar Rapids. His duties required him to assist in placing cars upon side-tracks. While in this service he was required to ride upon the top of a freight car, and at a certain point to descend therefrom by the ladder at the end of the car, while it was in motion, for the purpose of changing a switch. While in the act of commencing the descent, being in the position of stooping and reaching over
Another witness, who'was a freight conductor, was asked this question: “ Take the position you know McKean (plainr tiff) was in at the-time, * * * at the top of that car, the ladder being at the end of it, how should he have approached for the purpose of descending ? ” • Both of these questions refer to the act of plaintiff in attempting to descend from the car. An objection of plaintiff to each'question was properly sustained. The questions were intended to elicit the opinions of the witnesses upon the question of plaintiff’s car§ or negligence in attempting to descend from the car. The evidence was not competent. The witnesses could have; stated the practice of brakemen in descending ladders upon cars, or they could have explained the dangers attendant upon' any particular manner of descending from the cars; in -short, they could have testified to any fact tending to show the negligence of the plaintiff, but could not have given an opinion as to the negligence of plaintiff, or as to the manner in which he should have descended from the car in the exercise
III. The fourth instruction given to the jury is complained of by counsel for defendant upon the ground that the court therein determined that the plaintiff was not guilty of contributory negligence. But counsel’s objection is based upon an incorrect interpretation of the instruction. It simply directs the jury that if plaintiff approached the ladder with ordinary care and caution, and in a usual manner, and was thrown from the car by reason of its being suddenly stopped, when he did not know, and could not have known by the exercise of ordinary care, the brakes were to be applied, he was not guilty of contributory negligence. The instruction is without fault.
Y. Counsel for defendant insist that the verdict wants support of the testimony. The verdict cannot be disturbed on this ground. The evidence as to plaintiff’s care, and as to warning given him by signals that the cars were about to be stopped, etc., is conflicting. The jury doubtless believed witnesses for plaintiff, and plaintiff, rather than one or two witnesses for defendant. We cannot say that in this they
The foregoing discussion disposes of all questions raised in the argument of plaintiff’s counsel. The judgment of the District Court must be
Affirmed