143 Iowa 427 | Iowa | 1909
I. It is first insisted for appellee that this court is without jurisdiction to entertain the appeal, because it was not taken within six months from the date of the final judgment. It appears that on February 19, 1906, a verdict for defendant was returned by the jury under the court’s direction, and final judgment was rendered on that date and that within the statutory period allowed for the purpose a motion for new trial was filed which was not ruled upon until December 13th following, when it was overruled. Appeal was taken from this ruling within six months, and, if there was any error in overruling the motion which can be considered on an appeal, we may properly reverse on that ground, although such time had elapsed - after the rendition of the judgment that errors in directing the verdict and entering judgment in pursuance of such verdict can not be considered.
The general claim for defendant made in argument is that plaintiff must have known that the car was coming at a rapid rate on account of the dust and noise to which his companions, as witnesses, testified, and that it was his duty to look out for danger before he went upon the track; but, if, as a matter of fact, plaintiff, having observed the car a block distant, proceeded to do that which would have been safe if the car was going at a lawful rate of speed, it certainly was not conclusively contributory negligence on his part that he did not stop before reaching the track to make another observation of the car, unless he was aware that the danger was greater than that which he had cause to anticipate from his first observation. Plaintiff was not a witness, because his condition was such by reason of the injuries received in this accident that he-could not testify. His companions preceded him,' and had no means of knowing, nor did they attempt to testify, as to whether he stopped or looked again after leaving the
For the error pointed out in the second division of this opinion, the judgment is reversed.