41 Iowa 353 | Iowa | 1875
We will consider the objections to the judgment in the order we find them presented in the arguments of appellant’s counsel. They require but brief discussion.
IY. Two instructions gave rules to the jury, to be applied in case they found that the ditch into which plaintiff fell was dug by the city or by others under contract with the city. It is claimed that there is no evidence of either fact, and the instructions were, therefore, erroneous. It does not appear that there was any contest upon this point at the trial, and that
YI. The ninth and tenth instructions ■ are claimed to be erroneous, in that the first assumes that plaintiff’s injuries were permanent, and the second that he suffered up to the day of trial. The ninth directs the j nry to allow plaintiff for permanent injuries, and the tenth for injuries suffered up to the day of trial. Another instruction very clearly directs the jury that plaintiff can only recover for injuries established by the preponderance of the testimony. The jury could not have been misled by the instructions complained of, as they considered them in connection with the one just referred to.
YII. An oral instruction, by the consent of the parties, was given to the jury, directing them that a verdict found for plaintiff in a manner pointed out would not be legal, is objected to upon the like.ground that plaintiff’s right to recover is assumed therein. As before remarked, in another instruction, the jury were directed that plaintiff was not entitled to recover except upon the preponderance of the evidence in his-favor. It was not necessary to repeat the instruction to that effect.
■ X. It is insisted that the verdict is in conflict with the evidence. We think otherwise. The jury were justified in the exercise of an honest and intelligent judgment, upon the facts before them, to find for plaintiff; Neither is there any objection to the judgment, on the grounds of the amount of the verdict, which would authorize us to set it aside.
■ We have noticed all the points in the assignment of errors which we are permitted to consider, and discover no error in the judgment and proceedings of the court below.
Affirmed.