Baldwin v. St. Louis, K. & N. W. Ry. Co.

• Decision Date: 02 October 1888
• Citation: 75 Iowa 297,39 N.W. 507
• Parties: BALDWIN v. ST. LOUIS, K. & N. W. RY. CO.
• Court: Iowa Supreme Court

75 Iowa 297

39 N.W. 507

BALDWIN

v.ST. LOUIS, K. & N. W. RY. CO.

Supreme Court of Iowa.

October 2, 1888.

Appeal from district court, Lee county; J. M. CASEY, Judge.

Action to recover damages for personal injuries sustained by plaintiff while in the employment of defendant, through its negligence. There was a judgment on a verdict for plaintiff. Defendant appeals.J. H. Anderson and H. H. Trimble, for appellant.

Gibson Brown and D. F. Miller, Jr., for appellee.

BECK, J.

1. This is the fourth appeal to this court in this case. See 63 Iowa, 210, 18 N. W. Rep. 884;68 Iowa, 37, 25 N. W. Rep. 918;33 N. W. Rep. 356. The pleadings and evidence found in the abstract before us upon this appeal are substantially the same as those in the former appeals, and are stated in the opinions announcing our former decisions, so far as was deemed necessary. In one or two instances it is claimed that the evidence upon the last trial is to some extent different from the evidence on the former trials. If it be found in the consideration of the case in this opinion that these differences are important, they will receive proper notice. Our former opinions, in connection with this opinion, present all the pleadings and evidence necessary for an understanding of the points of our present decision. We shall proceed to the consideration of the questions raised by defendant's counsel in the order of their discussion by them.

2. A rule prevailing in the district court is in the following language: “Rule 2. In any case once continued, where an answer is on file, either party desiring to bring such cause on for trial at any term shall, at least 10 days before such term, file with the clerk a notice of trial, and no such cause shall stand for trial unless a trial notice be so filed, except by consent of parties: provided, that, after the commencement of the term, the court may, in its discretion, by order entered of record, permit notices of trial to be entered in the same manner, 10 days prior to such date as the court may name in such order. Such order may be general, and not entered of record in each particular case.” The case had once been continued, and no notice under this rule had been given before the term. But after the commencement of the term a notice in accord with the rule was given in pursuance of an order entered of record in this case, as contemplated by the rule. But the order was special, applying in this, and no other, case. To the entering of this order defendant excepted, and now insists that it is erroneous. The ground of defendant's objection, as we understand it, is that the rule contemplates that the order shall be general, and should not be made applicable to one case. The district court, we think, rightly construed the rule to authorize the special order applicable to this case alone. We think the language of the rule plainly authorizes this conclusion. But were it doubtful, admitting an honest difference of opinion, we would not disturb the construction of the district court of its own rules. We would presume that such construction is in harmony with the intention with which the rule was adopted, and we would regard the construction as a part of the rule itself settling the practice upon this point through the whole district. We therefore feel bound to follow the interpretation of the rule adopted by the district court, and affirm its ruling complained of by counsel.

3. Counsel for defendant insist that the evidence fails to support the verdict, and the court below, therefore, erred in refusing to direct a verdict for defendant. This objection is based upon the claim that plaintiff, not being engaged in the operation of the railroad, cannot recover for the negligence of a co-employe, and that the negligence, if...