137 Iowa 368 | Iowa | 1907
The defendant at the time in question was engaged in the business of retailing ice in the city of Des Moines, making deliveries at the respective residences of its customers. Among the latter was plaintiff’s intestate, Mary McMahon. The petition alleges that in August, 1905, one of defendant’s employes, Burham by name, while engaged in delivering ice to plaintiff’s intestate, negligently staggered and fell upon her, stamping and tramping upon her foot and breaking and crushing the bones thereof. And it is alleged that said Burham was drunk at the time, that he was an unfit person for the work in which he was engaged, and that defendant was negligent in employing him for that purpose and in retaining him in that capacity with knowledge that he was a drunkard and unfit for the work. The answer was a general denial.
Accepting this as the settled .law on the subject, and assuming that the refusal of the court was error, it remains to be considered whether the error was prejudicial. And this because not every error occurring during the course of a trial is to be given force ex necessitate to work a reversal of the judgment. According to our well-settled rule, if the error be such in character, or so occurred as that upon the whole record it can be said that no substantial prejudice resulted, it should be ignored. The cases on the subject are familiar, and we need not cite them. Considering the exhibit in question, and conceding the same to be such a written document as to bring it within the meaning of the statutory provision to which we have made reference, we think that in reason no prejudice could have resulted from the simple failure to send it out on request of plaintiff. It will be remembered that Burham testified on his direct examination that he had taken two drinks of intoxicating liquor early in the day. At best, the exhibit — his written statement executed at some time prior to the trial — amounted to no more than an admission on cross-examination that, in addition to
No other matters of error are presented.
Accordingly, the judgment must be, and it is, affirmed.