Beems v. C., R.I. & P.R. Co.
| Decision Date | 20 April 1882 |
| Citation | 12 N.W. 222,58 Iowa 150 |
| Parties | BEEMS, ADM'R., v. THE C., R. I. & P. R. CO |
| Court | Iowa Supreme Court |
Appeal from Cass Circuit Court.
ACTION by an administrator to recover damages resulting to the estate of the intestate, who was a brakesman in the employment of defendant, on account of injuries resulting in his death, caused by the negligence of defendant's employes. There was a verdict and judgment for plaintiff. Defendant appeals. The facts of the case appear in the opinion.
REVERSED.
Wright & Wright, for appellant.
A. S Churchill, for appellee.
OPINION
The case may be more briefly and satisfactorily disposed of by considering the objections to the judgment of the court below in the order of their presentation in the argument of defendant's counsel.
I. The verdict was rendered on the 16th day of March, 1880. On a previous day, counsel for the respective parties had stipulated in writing "that either party shall have five days from the coming in of the verdict in which to file the usual motions." On the 22d of the same month judgment was rendered upon the verdict; on the 23d defendant filed a motion in arrest and for a new trial, and on the same day moved for judgment non-obstante. On the next day plaintiff moved to strike the motion for a new trial, on the ground that it came too late. On the 26th defendant moved to set aside the judgment and made a showing against plaintiff's motion to strike. The showing against the motion to strike was in effect, that one of the counsel of defendant, engaged in the trial of the case, left for another court before the verdict was in. In the intervals of business he prepared the motion for a new trial, and on the 19th sent it to one of his associate counsel residing at the place of trial. It was left at the house of the attorney, who was absent, and was not filed until the 23d. The court overruled the motion to strike, the motion for judgment non-obstante, the motion in arrest and for a new trial, and the motion to set aside the judgment. We think the several rulings are correct. It may be admitted that the judgment being entered on the 22d of November (the 21st being Sunday), was rendered before the expiration of the time fixed by the stipulation of the parties for filing motions. The entry of the judgment, however, was no impediment in the way of defendant presenting his motion for a new trial. If that motion had been sustained the judgment would have been set aside. We believe that it often occurs in practice that judgments are entered before motions for new trials are disposed of; if such motions be sustained, the judgments are regarded as being set aside by the orders granting new trials, or such orders expressly provide that the judgments be set aside. Defendant's showing, in excuse for delay in filing his motion for a new trial, may be considered in connection with that motion which, it must be admitted, was not filed within the time fixed in the stipulation of counsel. If it be conceded that the delay in filing the motion for a new trial may be excused, upon proper showing of diligence on the part of defendant, or that it was the result of accident or misfortune, we are of the opinion that the showing of defendant's counsel fails to make out such a case.
II. The motion for a new trial was filed on the 23d of November, which was more than five days from the coming in of the verdict. See Code, § 45, par. 23. The parties by the stipulation did not waive the effect of Code, section 2838, further than to substitute five days in the place of three for the filing of the motions contemplated. If the motion was not filed within the time prescribed by the statute, it was for that reason properly overruled. Boardman v. Beckwith, 18 Iowa 292; Clinton National Bank v. Graves et al., 48 Iowa 228. The same result must follow when the filing is not within the time fixed by the agreement of the parties. The motion for a new trial was properly overruled, and the court rightly refused to set aside the judgment, upon the ground that it was entered before the time for making a motion for a new trial, as fixed by the agreement, had expired.
III. We will now consider the action of the court in overruling the motion for judgment non-obstante. The intestate met his death in making an attempt to uncouple the tender from a car. The special findings of the jury show that when he went between the cars to uncouple them they were moving at an improper and unusual rate of speed. Counsel for defendant insist that this finding establishes the fact of contributory negligence on the part of the intestate. The petition alleges that defendant's employes in charge of the engine were negligent, in failing to obey a direction given them by a signal made by the intestate to check the speed of the cars. The testimony tends to support this allegation. The jury were authorized to find from the testimony that deceased made two attempts to uncouple the cars while they were moving. After the first attempt he came out from between the cars, and signaled directions to check their speed; he immediately went again between the cars to make the second attempt to uncouple them. His signal was not obeyed. He was authorized to believe that the motion of the car would be checked, and he was not required to wait, before acting, to discover whether obedience would be given to his signal. The jury could have found that after the signal had been given, and after he had gone between the cars, if their speed had been checked, he would not have been exposed to danger. His act, therefore, in going between the cars after having made the signal to check their speed, was not necessarily contributory negligence. Steele v. Central R. R. of Iowa, 43 Iowa 109. The special findings of the jury are, therefore, not inconsistent with the general verdict.
IV. Counsel for defendant complain of certain instructions given to the jury, and the refusal to give an instruction asked by defendant. Plaintiff's counsel insist that no exceptions were taken to the instructions in the court below, except in the motion for a new trial, which, as we have seen, was not filed in time, and for that reason was properly overruled, and an amended abstract filed by plaintiff shows that no exceptions to the rulings upon instructions were taken at any other time. But the correctness of the amended abstract upon this point is denied by defendant. We have, therefore, found it necessary to examine the manuscript record and find that the rulings upon the instructions were excepted to at the time they were given. This is sufficient to require us to consider the questions discussed by counsel touching the instructions, though it may be conceded that the exceptions were not saved by the motion for a new trial, for the reason that it was not filed in time. We will proceed to consider the objections discussed by counsel, which are based upon the instructions given and refused.
V. The fifth instruction given, in stating the acts of negligence charged by plaintiff, uses this language: "The third cause of complaint is that the parties in charge of the engine moved the train at an unusually fast rate of speed." The petition in charging negligence contains this averment: "The engineer * * * * carelessly and negligently backed up the said train unusually fast." Counsel insist that the statement of the instruction is broader than the language of the petition just quoted, in that, by the use of the plural "parties," it applies to the fireman who was upon the engine assisting the engineer, and he is not charged with negligence in the petition. If the fireman was operating the engine or assisting in that work he must be regarded as an engineer. And if there were two engineers the language of the petition is applicable to the one who was guilty of negligence, or to both, if both were negligent. The allegation of the petition charges negligence upon the engineer. There is no rule of pleading which limits the averment of negligence to one engineer, on the ground that the singular number is used. So the instruction, by the...
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