45 Iowa 546 | Iowa | 1877
The defendant objectfed to the same as being in conflict with the rule of the defendant introduced, and the court sustained the objection and refused to allow such evidence to be given unless knowledge of the custom should be brought home to the defendant’s superintendent. To this ruling the plaintiff excepted, and she now assigns the same as error. The object of the offered evidence was, of course, to show that the rule in question had been waived by the defendant to such extent that it was not a violation of duty on the part of said Maurice O’Neill to leave his brakes under the circumstances of the case and be riding on the locomotive at that time. Without considering whether the rule could be regarded as waived by any less formal or authoritative action than that by which it
II. At the request of the defendant the court gave an instruction which is in these words:
The plaintiff excepted to the giving of this instruction, and makes an assignment of error in the following words: “ The court erred in instructing the jury that if Maurice O’Neill left the brakes and went to the engine and was killed thereby, plaintiff could not recover.” .The specific instntction objected to is not pointed out. The assignment of error, therefore, is not 'as specific as. it should be, but we will assume that the plaintiff had' reference to the instruction above quoted. The first objection urged in the argument upon this • point by-plaintiff is that the evidence shows that the locomotive was within a few feet of the opening when it was discovered, and that it was too late to do anything to avoid the accident. If the evidence so shows plaintiff’s counsel have unfortunately omitted it from the record. But if such were the evidence we do not think that the instruction would for that reason be wrong. The instruction submitted to the jury the question as to whether O’Neill exposed himself by going upon the engine — that is, whether he, increased his peril, and whether
It is further objected that the court assumed that not being at the brakes was contributory negligence. We do not think that the court could properly have been so understood.
III. The plaintiff moved for a new trial on tbe ground of newly discovered evidence, and the .motion was overruled. The overruling of the motion is assigned as” error. In support of such motion plaintiff filed the affidavit of one Breitenstein, who says that he was conductor upon the train. He further says that O’Neill was head brakeman; that his position was on the forepart of'the train; that he might ride on the engine^ and that he was at his post at the time of the accident.
What he regarded as his post does not fully appear, but it is to be observed that he does not say that O’Neill was at the brakes, and it is to be inferred that he considered him - at.his post when riding on the engine. He does not state by what authority he was there, or in the discharge of what duty he was there, and his mere opinion as to his right to be there would, we think, not be admissible. Besides, we are of the ■opinion that no proper diligence was shown to discover the evidence. If there was any question as to where O’Neill was, the circumstances of the accident pointed directly to the conductor as well as to the others in charge of the train' as proper witnesses in regard to such fact.
Some other errors are assigned, but they are not discussed by appellant’s counsel, and must be considered as waived. We discover no error in the rulings of the District Court, and the judgment must be
Affirmed.