56 Iowa 520 | Iowa | 1881
I. At tbe term of tbis court held in October, 1880, at Dubuque, a motion made by plaintiff to strike from tbe record tbe bill of exceptions was sustained. On tbe day tbis order was made defendant moved tbe court to set it aside. Tbe cause, with tbis motion anda motion of plaintiff to affirm tbe judgment, was continued to tbe December term and defendant bad leave in open court to file an amended abstract. At tbe December term plaintiff moved to strike defendant’s
We think the order sustaining plaintiff’s motion to strike
II. We are now required to consider plaintiff’s motion to strike the amended abstract filed by defendant. This abstract is probably intended to set out more fully some parts of the testimony, and is especially designed to present the instructions given and refused, with the exceptions noted upon the margins thereof. It is not unusual to allow parties to file amended abstracts when they discover that their cases were not fully presented in the original abstracts. This, of course, is always done before the case is submitted, and at such times as the other parties will not be prejudiced thereby. The amended abstract of defendant was filed in ample time, before the submission of the case, for the plaintiff to present corrections, or deny its statements. - The motion to strike it is overruled.
September 1, 1880, before the first term at which the case appeared in this court, plaintiff filed with the clerk an additional abstract correcting and making additions to the evidence presented in defendant’s original abstract. It is not claimed by plaintiff that the original abstract and plaintiff’s additional abstract do not present all the evidence in the case. Indeed the inference is to be drawn from the act of plaintiff in correcting and adding to the evidence, as set out in the original abstract, that she admits that all the evidence is presented by the two abstracts. We have held that a party filing an additional abstract purporting to ’ supply defects and omissions in the original abstracts cannot deny that all the evidence is before the court. Starr v. The City of Burlington,
Plaintiff by her additional abstract admits that the evidence was preserved in the court below, and presents additions to the testimony which she inferentially admits sets out, with the oi’iginal abstract, all the testimony in the case. We will not permit her to deny, after making the admission, that the evidence is preserved in the court below, and that the parties by their several abstracts present all of it to this court. Parties to actions will not be permitted in this manner to change the grounds upon which they claim the judgment of the court and deny what they have before admitted.
The striking of the bill of exceptions does not take from the records the instructions and the exceptions thereto, for they are made a part of the record without a bill of exceptions. Code, § 2787. In the case before us the giving and refusing of the instructions and the exceptions are noted upon the margins. This is sufficient, without a bill of exceptions, to authorize this court to review the rulings of the Circuit Court upon the instructions; Cadwallader & Company v. Blair et al., 18 Iowa, 420; Phillips v. Starr & Co., 26 Iowa, 349.
We conclude plaintiff cannot deny that the evidence set out in the abstract is all the testimony in the case, and that the instructions, and exceptions thereto, sufficiently appear in the record without the bill of exceptions, all of which is properly presented by the abstract. The plaintiff’s motion to affirm must, therefore, be overruled and the cause must be considered upon its merits.
Under a rule of this court arguments filed with the clerk after a cause is submitted are not sent to the justices. The plaintiff’s counsel did not file his argument until after the submission of the cause. In view of the fact that counsel may have been misled as to the time when the cause was set down for hearing, and of other circumstances, we think the rule ought not to be applied in this case. We have therefore
The defendant asked the court to instruct the jury to the effect that if they found the service of the intestate as brakeman upon the route where he was employed was hazardous and dangerous on account of the bridge being of insufficient height, of which he had knowledge while employed upon this part of the road, and he continued in defendant’s service without objection, the law, in such case, is that he assumed the dangers incident to the service resulting from the bridge in question, and his administratrix, therefore, cannot recover on account of his death. The court refused to give this instruction. It should have been given. The rule of the instruction is announced in Perigo v. The C. R. I. & P. R. Co., 52 Iowa, 276; Muldowney v. The Ill. Cent. R. Co., 39 Id., 615; Kroy v. The C. R. I. & P. R. Co., 32 Id., 357; Way v. The Ill. Cent. R. Co., 40 Id., 341; Lumley v. Caswell, 47 Id., 159.
The principles upon which the rule is based are well stated by I)at, J., in Perigo v. The C. R. I. & P. R. Co. Referring to the other cases above cited he uses this language: “The doctrine of these cases is that the ne^lisrence of the
III. Counsel for plaintiff insist that the burden rested upon defendant to show knowledge of the deceased as to the dangerous character of the bridge, and that he had remained in defendant’s employment without objection or protest, and that no evidence was offered upon this point. The position is based upon the ground that the- waiver of liability of defendant, resulting from the deceased remaining in the service of defendant without objection, being a defense, the burden of proof to support it rests upon defendant. We think this position as to the law is correct so far as it applies to the affirmative allegation of the defense to the effect that deceased had knowledge of the danger of the service. It is possible, but the point we do not decide, that the burden then changed to plaintiff, requiring her to show, in order to defeat the waiver of defendant’s liability, that deceased did make objection to the service on account of the danger, or that defendant had promised to remove the cause thereof. But we are of the opinion that there was evidence tending to show the knowledge of deceased as to the dangerous condition of the bridge, and that he made no objection on. account of the hazard .resulting therefrom. It is shown that he had been
We conclude that there was evidence tending to establish the facts which would constitute a waiver of defendant’s liability under the instruction refused by the court. It ought, therefore, to have been given. For'the error in refusing it, the judgment of the Circuit Court is
Reversed.