189 Iowa 1018 | Iowa | 1920
The plaintiff, as administratrix of the estate of the deceased, brings this action at law, to recover the damages occasioned by his death.
The defendant answers by denial of the allegations of the petition, and pleads affirmatively that the death of White was the result of the dangers and perils naturally incident to the work in which he was employed, and not in any degree to neglect or want of due care on its part. The answer also pleads affirmatively that the injury and death of deceased were due to his own negligence.
There was a jury trial,, and verdict and judgment in plaintiff’s favor for $3,500. Defendant appeals.
Under this statute, to sustain her right to a recovery, plaintiff was not required to allege or prove specific acts or omissions of a negligent character by ihe appellant. See, on this point, Mitchell v. Swanwood Coal Co., 182 Iowa 1001, where the subject is fully discussed. We there said:
“When the servant has established the employment, and that the injury arose out of and in the course of his employment, a prima-facie case of negligence is made against the master.”
In the case before us, such prima-facie case was made. The facts on which it rests are undisputed. Whether that showing and the presumption arising therefrom were successfully rebutted by the defense, was a question of fact, for the consideration of the jury.
Appellant sought to meet the case so made, by testimony tending to show due care in daily inspection and in other precautions to make the entry a reasonably safe place to work; but it clearly does not present a case which enables the court to say, as a matter of law, that the burden which the statute casts upon the employer in such cases has been successfully sustained. Counsel on both sides have taken much pains to explain the practical working of coal mines in the Appanoose field, and the methods followed in making
At the place where White was killed, the cap rock had been cut or arched out, leaving a ledge or projection of such rock extending from the side of the entry a short distance into the upper part of the entry, and resting on the side wall. Hoav far this rock constituting the ledge extended into or beyond the gob Avail of the entry Avas not known, and was not open to visual inspection; but there was testimony from Avhich the jury could find that, if the rock AAras broken so near the projection into the entry as to create danger of its falling or slipping out, the danger could be discovered by proper sounding, and the peril removed by taking the rock doAvn. Indeed, it would seem hardly to require expert or technical knowledge of mining to suggest to men of ordinary prudence that a ledge of rock not more than- a foot in thickness, extending across the gob Avail into an open space, and subjected to the tremendous pressure of countless tons of superimposed rock and earth material, would quite certainly break, in due time (if not already broken), and the ledge fall into the entry.
There Avas testimony also tending to show that the break, in this instance, had taken place at a point only a feAV inches from the face of the Avail, and was not one of recent origin. In short, the circumstances were such that, even admitting
The verdict for plaintiff cannot, therefore, be set aside as being without support in the evidence.
Altogether,, we are impressed with the view that the trial court did not err in refusing a new trial on this ground. It is not to be denied that appellee’s counsel did indulge in improper statements and insinuations, but he extenuates his offense by asserting that appellant’s counsel himself did not play the role of the inoffensive lamb, but assumed an attitude “furious, violent, impetuous, forcible, mighty; as a vehement wind, a vehement torrent, a vehement Are and heat,” and by such conduct provoked and invited the retorts and declaration of which he complains. That there were bushwhacking attacks and counter attacks by counsel which deserve condemnation and rebuke must be conceded; but they were by no means confined to one side of the controversy, and, in view of the fairly successful efforts of the court to hold an even rein on the contestants, and to protect the jury from being misled, we are not jus
VII. Other errors assigned upon instructions given and requests for instructions refused, and upon rulings in matters of evidence, are entirely too numerous to justify us in extending this opinion for their discussion in detail. The record is one of unusual volume, and prepared with slight reference to our rules; but we have examined it at length with care, and find no reversible error. So far as the exceptions taken raise questions pertinent to the issues tried, they are governed and controlled by the conclusions we have announced in the foregoing paragraphs of this opinion. Of other points made,, it may be said that they reflect the erroneous view which pervades much of appellant’s argument: that plaintiff, in addition to proof that the injury to deceased arose out of and in the course of his employment, must also prove that defendant Avas guilty of negligence Avith respect to some specific act or omission inconsistent Avith due care for the safety of its employees, a proposition Avhich, avb have repeatedly pointed out, is without merit in
VIII. Appellant’s final contention is “that, in any event, the damages assessed are grossly excessive.”
Assuming, as we must, upon the record, that the plaintiff was entitled to recover damages in some reasonable amount, the award made by the jury does not appear to be unreasonable or extravagant; or, to say the least, is not so manifestly excessive as to indicate that the jiiry was influenced or swayed by passion or prejudice. That a young, married man, of good and industrious habits, with an earning capacity of $1,500 per year, and having a life expectancy of 30 years or more, may reasonably be expected to accumulate an estate of the present worth of $3,500, is an estimate which hardly justifies counsel’s fiery denunciation as an “unmitigated-outrage.” We find in it nothing which justifies us in interfering with the verdict.
In closing this discussion, it may be said that it is true that the statute to which reference has been made, places the defendant at considerable disadvantage, as compared with the position it would occupy if all the common-law rules applicable to negligence cases of this class were still available to the employer. But, having deliberately, and of
We find no good reason for setting aside the verdict, or ordering a new trial. The judgment below is — Affirmed.