75 Iowa 563 | Iowa | 1888
— The ground of negligence stated in the substituted petition upon which the plaintiff bases his right to recover is “the gross carelessness of the person who was in charge of the engine, and the brakeman who was on top of the car ; that, as the cars were being backed up, plaintiff signaled the person who was in charge of the engine to slow up; and when the car was approaching the car to which it was to be coupled, and was within five or six feet of the stationary car, plaintiff stepped forward to adjust the coupling, when the brakeman on the train signaled the person who had charge of the engine to back up, when the car was thrown violently back, thus catching and crushing-plaintiff ’s hand; that the engineer was not at his post, but that the person who had charge of the engine was the “wiper.”
It will be observed that the only question submitted to the jury was whether the person in charge of the engine was guilty of negligence, and the court did not err in so doing. It is true, it is stated in the petition that the injury was caused by the negligence of such person and the brakeman, but as there was no evidence tending to show that the brakeman was negligent, the court rightly withdrew such issuefrom the jury. There was no evidence tending to show that the brakeman was
Affirmed.