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

• Decision Date: 12 December 1883
• Parties: MANNING v. BURLINGTON, C. R. & N. R. CO.
• Court: Iowa Supreme Court

17 N.W. 669

MANNING

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

Supreme Court of Iowa.

Filed December 12, 1883.

Appeal from Linn district court.

The plaintiff, an employe of the defendant, brings this action to recover damages sustained by stepping into a hole in defendant's round-house, in which plaintiff was employed. There was a jury trial, and a verdict and judgment for the defendant. The plaintiff appeals.Blake & Hormel and J. B. Young, for appellant.

J. & S. K. Tracy, for appellee.

DAY, C. J.

The evidence shows that prior to September 3, 1881, the plaintiff was in the employ of defendant, when he had a rib broken and was laid up for nearly five months. The evidence does not show what the plaintiff's employment was prior to September 3d. On the twenty-seventh of March, 1882, the plaintiff was employed by the defendant as a sweeper, and about 8 o'clock in the morning of the same day he sustained the injury for which he sues by stepping into a hole in the round-house, where he was engaged as a sweeper. The evidence shows, without conflict, that plaintiff had never been in the round-house before the day he got hurt, unless it was to go through it when he went to his work in the morning, and that he did not know of the existence of any holes there. The court instructed the jury as follows:

“If you find from the evidence that plaintiff was an employe of defendant in the round-house in question, and working about this excavation prior to the alleged accident, and knew of its location and unsafe condition, and continued to work about there without objection, and by accident stepped or fell into it, then he could not recover.”

Within three days after the verdict the plaintiff filed exceptions to this instruction, which were, by reference, incorporated into the motion for a new trial. The exception taken to the instruction is that there was no evidence adduced showing or tending to show that plaintiff ever worked in the round-house in controversy before the morning of the day when he received the injuries complained of. The exception to this instruction is well taken. It has no basis whatever in the evidence. It has frequently been held by this court that it is error to give an instruction based upon a state of facts of which there is no proof. Hess v. Wilcox, 58 Iowa, 380, [S. C. 10 N. W. REP. 847,] and cases cited; Clark v. Ralls, 58 Iowa, 201; [S. C. 12 N. W. REP. 260;] Star Wagon Co. v. Swezy, 59 Iowa, 609; [S. C. 13 N. W. REP. 749.]

For the...