52 Iowa 210 | Iowa | 1879
The evidence tended to show that early in the morning, while the plaintiff was in bed, the defendant caught hold of and raised him up to a sitting position, and whipped him over the back and shoulders with a small “raw-hide.” Plaintiff had no clothing on his person, but did what he could to screen himself with the bed clothing. The plaintiff’s back and shoulders were black and bruised, and there were cords or welts caused by the whipping. The skin was lacerated in more than one place from two to six inches in length. Blood exuded and there were forty or more blows struck. There was a scar on plaintiff’s back at the trial, which was two years after the whipping. The plaintiff testified that at times there was pain in the region of the scar, and that he was troubled with shortness of breath. There was evidence tending to show that this could not have been the result of the whipping. The plaintiff was confined to his bed for a short time, but there was evidence tending to show that he probably entirely recovered from the effects of the whipping in about ten days.
The evidence further tended to show that defendant did not know plaintiff did not have any clothing on, and that plaintiff was an employe of defendant; a portion of his duties being to milk cows, drive them to the pasture, and feed hogs. These duties he on one occasion neglected to perform. For such neglect he received the whipping. The age of the plaintiff does not distinctly appear, but counsel for appellant say he was a “ minor nearly of age, and a large, vigorous, stalwart young man, on whom his mother was dependent in a measure for her support.” The defendant is over six feet high and weighed two hundred pounds.
Thirty-four errors were assigned. All are to some extent insisted on in argument. Several relate to the same thing and may be said to be a statement of different reasons why the same result should be reached. We cannot undertake to discuss all the reasons set forth but will endeavor as briefly as may be to determine the important errors relied on.
III. The instructions in relation to damages accord with Hendrickson v. Kingsbury, 21 Iowa, 379; Garland v.Wholeham, 26 Id., 185; Guengerich v. Smith, 36 Id., 587, and Ward v. Ward, 41 Id., 686. This is substantially conceded by counsel, but it is. insisted the facts in the case at bar are different. This is true; the facts in no two cases are usually precisely the same. They are, however, governed by the same rule of law. The application of the fact thereto is for the jury. In legal acceptation there is not a particle of difference between this case and those cited.
The defendant asked the court to instruct the jury that the weight to be given to such evidence was “ meagre arid slight.” This was a question for the jury, not the court.
YI. The court instructed the jury that the evidence must show, beyond a reasonable doubt, that the plaintiff was assaulted and injured substantially as stated in the petition. This instruction is favorable to the defendant, but as it constitutes the law of this ease it is insisted there was not sufficient evidence to warrant the jury in finding the assault was malicious. In this we do not concur, but think the evidence was not only sufficient in this, but in every other respect.
YII. An instruction that the “ provocation and cause of said whipping of the plaintiff did not and do not justify the defendant in assaulting and whipping the plaintiff as alleged” was given. In this we fully concur. A provocation that would justify a killing might possibly justify this assault and
Whatever may be the rule in other states, in this it is settled in accord with the instructions. Hendrickson v. Kingsbury, 21 Iowa, 379; Guengerich v. Smith, 36 Id., 587.
X. The question asked the plaintiff on cross-examination and which was objected to on that ground, was properly excluded. The following question was asked a witness:
" State whether or not there were lashes there six inches in*215 length where the skin had been cut so deeply the blood had •come out and was gathered in large cords.”
It was objected to because leading, and the objection overruled. The witness answered as follows:
“ My recollection at the present time is that there were cuts there that were fully six inches in length, where the skin had been broken. In regard to gathering in cords I should not be so particular about. This whole transaction has gone entirely out of my mind. When I was subpoenaed to come here this morning, at first 1 had doubts that I had seen anything in the case at all.”
In the examination of witnesses much is left to the discretion of the trial judge. In some cases leading questions are allowable: 1 Greenleaf Ev., § § 431, 435. Conceding the question to be leading we should be unwilling to reverse for that cause unless it appeared from the answer of the witness, that he was influenced in making it by the form of the question. We think it is entirely clear the effect of the question on the witness was no greater than it would have been if his. attention had been directed in much less pointed terms to the subject or thing about which he was desired to speak. 1 Greenleaf, § 434.
The result is the judgment below must be
Affirmed.