Crowley v. Burlington, C. R. & N. R. Co.

• Decision Date: 08 April 1885
• Citation: Crowley v. Burlington, C. R. & N. R. Co., 65 Iowa 658, 22 N.W. 918 (Iowa 1885)
• Court: Iowa Supreme Court
• Parties: CROWLEY v. BURLINGTON, C. R. & N. R. CO.

65 Iowa 658

22 N.W. 918

CROWLEY

v.BURLINGTON, C. R. & N. R. CO.

Supreme Court of Iowa.

Filed April 8, 1885.

On rehearing. S. C. 20 N. W. REP. 467.

ROTHROCK, J.

1. After the foregoing opinion was filed, a petition for rehearing was presented, in which counsel insists that this court should pass upon two assignments of error more specifically than is done in the closing paragraph of the opinion. The first of these objections is based upon the following instruction given by the court to the jury: “(4) If you should find from the evidence that the plaintiff was negligent, still the defendant could not escape liability, if the act which caused the injury was done by defendant after it discovered plaintiff's negligence, if you should find from the evidence that defendant could have avoided the injury in the exercise of reasonable care.” It is not claimed that this instruction is an incorrect statement of the law, but it is insisted there is neither averment nor proof that the defendant could have prevented the injury after the discovery of plaintiff's negligence. We do not think such an allegation is necessary to be made in the petition. It is a phase of the rights and obligations of the parties which arises upon the proofs rather than by pleading. We know of no rule of pleading which requires the plaintiff in actions of this character to confess negligence on his part, and avoid it by alleging that the defendant might have averted the injury by using proper care after the discovery of plaintiff's peril. The objection that there was no evidence to support the instruction does not appear to us to be well taken. There was evidence in the case to the effect that one Smith, a brakeman, saw ...