90 Iowa 689 | Iowa | 1894
In September, 1891, the plaintiff was in the employ of the defendant company, as a carpenter, and was engaged in shingling the sides of a shaft. For this purpose he was on the top of a cage that was operated up and down by an engine in charge of an engineer. When the plaintiff desired the cage
The court below eliminated, in the submission of the cause, the charge as to negligence in raising, instead of lowering, the cage, as directed, and submitted the questions only of negligence in the employment of an incompetent engineer, and in using an engine not suitable for the work. The record shows that two kinds of engines are used for hoisting purposes in coal shafts, single and double, and that the latter is the better engine. The single engine was the one in use by the defendant. In using the single engine, there are two points in each of the revolutions, known as “dead .points” or “dead centers,” at each of which the steam .power is lost, and these two points are when the piston •rod is furthest out or furthest in. The office of the fly wheel is, by the motion it has acquired after the engine is in' operation, to carry the rod past this center to ■where the motive power again becomes effective. If the engine is stopped with the rod exactly at or over
The court gave the jury the following instructions:
'“9. If the defects in the machinery, which result in an injury to an employee, are known to him, or are discoverable by him, in the exercise of ordinary care, and he remains in such employment without protest and without inducement, or promise that the defect shall be remedied, he will be presumed to have waived his objection to
10. The same rule will apply to the employment by defendant of an incompetent engineer. If you find that the defendant was guilty of negligence in the employment of an incompetent engineer, and further find that the plaintiff knew, or that it was so apparent that in the exercise of ordinary care he should have known, of his incompetency, before the time of the injury, and made no objection to him, and remained in the employment of defendant after such time, then he will be deemed to have waived it, and he can not recover in that event, on account of the incompetency of the engineer.”
These instructions are the law of this case, and a rule is given whereby, under a given state of facts as to each charge of negligence, there can be no recovery; and the undisputed facts bring the plaintiff within the rule so clearly that we think, in view of the rule given, the court could have, in terms, instructed against a recovery. No person was more familiar with the facts and situation of which complaint is made than was the plaintiff. He was as familiar as any person could well be with what he called the defect in the engine, that is, the reason, now urged, why it was not suitable for the
To avoid the waiver as to which the court instructed, the appellee urges that it was not pleaded, and he says,1 ‘This fact ends the case. ’ ’ Without intimating that the pleadings are defective in this respect, it is only necessary for us to say that the instructions, without objections by either party, present the rule as applicable to the issues, and the jury could not properly disregard it. As we have said, the instructions are the law of the case. These considerations are conclusive on this appeal, and the judgment is bevebsed.