Nelson v. Chicago, Milwaukee & St. Paul Railway Co.

77 Iowa 405 | Iowa | 1889

Beck, J.

I. It was determined in the former appeal in this case that plaintiff, while working upon the ditching machine, was employed in connection with the use and operation of the railroad.

1. railroads : employe0: evidence06 : II. The evidence shows that plaintiff incurred the .injury while he was working at the crank of a windlass used to raise and lower a bucket or shovel. The windlass was controlled by a brake in charge of an employe. The injury to plaintiff resulted from being struck by the handle of the windlass, which broke his shoulder. The negligence charged consisted in the employe’s releasing the brake without warning or notice to plaintiff. Counsel for defendant insist that the eyidence fails to show negligence on the part of any co-employe, and that plaintiff fails to show that he was in the exercise of due care. We think there is evidence upon both of these points tending to support the verdict. Plaintiff testifies, in effect, that he was not informed that the’ brake was to be taken off, so that the bucket would drop as it did. He is corroborated as to this point. It is quite apparent that, had he been warned, he would have escaped the injury. Upon these facts and others the jury could well have found negligence on the part of plaintiff’s co-employe, and that he was in the exercise of due care.

2. us®o!by ' agieemen . III. Before the first trial in the case, the deposition of plaintiff had been taken in his own behalf. The parties entered into a written agreement to the effect that the deposition “may be used in evi^ence on trial of the cause,” subject to objections noted therein. The plaintiff being present at the first trial, the deposition was not read. He testified orally. After the reversal of the case, the cause was again brought to trial, and, plaintiff not being present, the deposition was permitted to be read, against defendant’s objection. We think the court below correctly ruled on this point. The written agreement is not limited in time as to its stipulation for the reading of the deposition. It had not been read. It was agreed that it should be. The agreement does not prescribe when it shall be read, except that it “maybe used in evidence on the trial of the cause.” Now, we cannot interpolate words into this contract which will restrict its use to the first trial. It is agreed that it may be read. If counsel’s views are correct, the agreement becomes inoperative, and is thus defeated, for it can never be used at all. We think the deposition was rightly admitted.

3. acteai- re ' mentto '^uf11" IY. Counsel for defendant complain of the argument made by plaintiff’s counsel to the jury, and insist ^at it was- in violation of the rules of the ^aw applicable to the duty and privileges of counsel, and was prejudicial to defendant. The argument is printed at great length in the abstract. We are unable to declare that it so violates the rules of the law applicable to the matters as to require a reversal of the judgment in the case. But we cannot enter into a consideration of the argument for the reason that it is not shown by the abstract that it was preserved by a bill of exceptions, or in any other way recognized by the statute and the practice of the courts. It is only shown as a part of the motion for a new trial.

No other questions are discussed by counsel. In our opinion the judgment of the district court ought to be Affirmed.