72 Iowa 201 | Iowa | 1887
The evidence as to the exact condition of the track consisted principally of the testimony of one Cleveland. He testi
Crotty was the section foreman, but what he said was not said at the time and place of the accident. What he said, therefore, was not admissible as a part of the res gestœ. Sweatland v. Ill. & Miss. Telegraph Co., 27 Iowa, 433; Burlington, C. R. & N. R’y Co. v. Verry, 48 Id., 458. It is to be observed, further, that what Crotty said, if it is to be regarded as having any significance, is in the nature of an opinion. It was to the effect that, in his opinion, the track was dangerous. The jury, we think, must have so understood it. It did not show the jury in what the defect consisted. It did not aid the j ury to form an opinion as to the defect, independent of Crotty’s opinion. Now, we cannot think that the question as to whether the low place or sag was dangerous was one to be shown by an opinion.
It is claimed, however, that it was competent to show what Crotty said for the purpose of showing that, as section foreman, he had notice of the defect; and so, through him, the company should be deemed to have had notice of it. If it was competent to show what Crotty said, it was competent to show it as an admission of the defendant speaking through its mere employe. Of course, we have nothing to do with
tion, and without promise of any change therein. The bur
The .defendant insists that, where an.employe remains in the employment, with knowledge of the defect which caused the accident, without objection, and without promise of change, lie would waive the company’s negligence, even though his knowledge might not amount to full knowledge, and even though he might not have had sueli knowledge for a long time. The defendant, however, in its answer, pleaded that the decedent had full knowledge, and had had such knowledge for a long time. Now, while it may not be necessary in all cases to prove an averment to the extent to which it is made, we think that the court was justified in construing the averment as not broader than tlie case required. Where an employe’s knowledge is relied on as constituting an element of waiver, it should be such as to fairly apprise the employe of the danger. It appears to us that tlie defendant must have used the words “ full knowledge ” in that sense, and that it is not in a condition to complain if the court so understood the answer, and used the same words. If the defendant did not wish to be so understood, and thought that the court had not expressed the true rule, and that the jury might be misled, we think that it should have asked an instruction upon the point.
As to the use of the word “ long,” we are disposed to take substantially the same view. The word does not denote any specific length of time. We think that the defendant must
For the errors pointed out the judgment must be
REVERSED.