175 Iowa 223 | Iowa | 1916
At the time in question, the defendant was operating a coal mine in Wapello County, and the deceased, Edwin Peterson, was employed therein as a mule driver. At the time of the accident in controversy, he was driving in what is termed the south back entry., His route led through a door constructed between the seventh and eighth entries. On his last trip, he was seen to mount the tail chain in the position usually taken by drivers and start with a loaded car along the entry in the direction of the door above mentioned. He was also seen as he passed through the door. According to an engineer’s measurements, the track in the direction deceased was moving was slightly upgrade from the door for about 30 feet, thence a gradual downward slope for about 180 feet to a low point or level, called by the miners a swamp. The total descent is said by the engineer to be less than five feet, though the estimate by some of the witnesses is considerably greater. The entry appears to have been low in places, and the way through it had been narrowed by piling “gob”, on either side, leaving in places barely room for hauling ears along the track. Deceased had not been hauling on this particular route for more than a day or two; but he was a driver of several months’ experience, and we may fairly assume that he had acquired a reasonably adequate knowledge of the general character and nature of the entry. After he had driven through the door on this last occasion and passed on down the slope, one of the door tenders in the mine heard him cry out or call for help, and responding thereto, the boy went to his assistance, and found him caught or fastened in some way under the car. Whether the ear was derailed or was still upon the track is a subject of difference in the recollection of the witnesses. The boss driver, one Murphy, was
The petition in the case charged the defendant with negligence in eight specified particulars: (1) Defective construction of the entry, whereby the passage was too low to afford safe passage; (2) making the entry too narrow and permitting the passage to be further narrowed by piling refuse therein; (3) failing to provide light or other warning in the swamp; (4) defective construction and maintenance of the car tracks; (5) faulty construction of the door between the seventh and eighth entries; (6) failing to furnish deceased a safe place to work; (7) furnishing deceased with an unsafe or vicious mule with which to do the hauling; and (8) transferring deceased from a safe part of the mine to one which was dangerous without giving him proper warning of the risk so occasioned.
At the close of the testimony, the court narrowed the issues by charging the jury as follows:
“The only claim of negligence submitted for your consideration is the allegation that the door in question was not high enough to permit the mule driven by deceased to pass without striking his withers; ’ ’ and the charge to the jury as a whole was framed upon the theory indicated by the order or direction above quoted. There was a verdict for plaintiff for $5,500, and, defendant’s motion for a new trial having been denied, judgment was entered accordingly.
We do not find any allegation in the petition that the door was not high enough to permit the mule driven by deceased to pass without striking his withers. It is possible, however, that, in the absence of any motion for more specific
‘ ‘ The tendency of recent adjudications is to extend rather ,than to narrow the scope of the doctrine. Rightly guarded in*230 its practical application, there is no principle in the law of evidence more safe in its results.”
See also to same effect State v. Harris, 45 La. Ann. 842, 844. That this court adheres to the broader construction of the rule is readily seen in the precedents above cited. The objection to the evidence as not being res gestae, assuming the evidence to have been otherwise competent, was properly overruled.
‘ ‘ The function of the court with reference to evidence is not fully and completely discharged when it determines the admissibility of evidence offered. It may still look into the whole case to see whether the items of evidence together constitute any substantial proof of the fact sought to be estáb
It is true that this rule has special reference to the functions of the trial court; but it is an accepted proposition that this court will'more readily interfere with the discretion of the trial court where a new trial is denied than where it is granted, and in a clear case where manifest injustice will be done by permitting a verdict to stand we do not hesitate to reverse a judgment entered thereon. Cottage Organ Co. v. Caldwell, 94 Iowa 584; Turley v. Griffin, 106 Iowa 161; Snyder v. Thompson, 134 Iowa 725. That the present case calls for an application of this rule, we have no doubt. So far as the record discloses,, the witnesses Leach, Murphy, Brown and Ainer Peterson were the only persons having any opportunity .to hear -what the deceased said when he was discovered in his injured condition or while he was being removed from the mine. Of these, Leach, the first to arrive, testifies that, while still at the place of accident and before being placed in the car for removal, deceased said that his “fight went out and the mule slowed up and squeezed him when his fight went out,” and that he hung on as long as he could. Murphy, the next to arrive, testifies that, in answer to his inquiry as to how it happened, deceased said, “I guess it got dark and in reaching for the butt-stick I fell. ’ ’ The witness further adds, “He said his lamp had went out.” The significance, if true, of .this evidence that deceased said his fight went, out and the mule slowed up and squeezed him, is shown by other evidence ■that it is characteristic of a mule employed in driving through dark mine entries that it will stop suddenly if the driver’s light goes out; and it is manifest that if such stop is made unexpectedly, the driver, standing on the tail chain, is liable to be caught and squeezed between the moving ear and the hump of'.the mule.' Ainer Peterson, brother of the deceased, was lastito arrive,' and he says nothing of hearing the statements spoken .ofi.'b'y Leach and Murphy. Cf the three men getting into the^ear, to take deceased to the shaft, Brown, the driver, alone testifies to the alleged statement about the mule’s
Without further prolonging the opinion, we hold that the motion for new trial should have been sustained, and the judgment appealed from is therefore reversed, and cause remanded for a new trial in harmony with this opinion.— Reversed and Remanded.