McGuire v. Chi., B. & Q. R. Co.

• Decision Date: 09 June 1908
• Citation: 138 Iowa 664,116 N.W. 801
• Court: Iowa Supreme Court
• Parties: MCGUIRE v. CHICAGO, B. & Q. R. CO. ET AL.

138 Iowa 664

116 N.W. 801

MCGUIRE

v.CHICAGO, B. & Q. R. CO. ET AL.

Supreme Court of Iowa.

June 9, 1908.

Appeal from District Court, Appanoose County; Robert Sloan, Judge.

Suit to recover damages for a personal injury. Trial to a jury, verdict and judgment for the plaintiff. The defendants appeal. Affirmed.

Ladd, C. J., and Bishop, J., dissenting.H. H. Trimble, Palmer Trimble, and Frank S. Payne, for appellants.

Howell & Elgin, for appellee.

SHERWIN, J.

This is the second appeal in this case. The opinion on the first appeal is reported in 131 Iowa, 340, 108 N. W. 902, where a statement of the facts may be found. On the former appeal we held that the plaintiff's demurrer to the answer should have been sustained, and reversed the case and remanded it for further proceedings not inconsistent with the opinion. On the last trial in the district court a demurrer to the same subject-matter held demurrable in the former opinion was sustained, and the appellant assigns the ruling as error. Counsel for appellants concede in argument that the ruling is governed by the former opinion, if the same is adhered to, and do no more than to file a brief of points covering their contentions relative thereto. We still think the rule there announced the correct one, and that the demurrer herein was properly sustained. See McGuire v. Railway, 131 Iowa, 340, 108 N. W. 902.

The appellants ask a reversal for other reasons, which we shall presently consider. But, before doing so, it will be necessary to pass upon the appellants' motion to strike from the appellants' additional abstract an amendment to the petition which was filed at the close of the evidence. The original petition alleged that the defendants' engineer negligently caused “said train of cars and said engine to move, thereby bringing the front car and said engine together, or, in other words, by causing a slack of said train's coming against the said engine; that by reason of said moving of said engine, and permitting said slack of said train of about 13 cars to come against said engine,” the plaintiff was caught and injured. It was further alleged that “said engineer was negligent in moving said engine, causing said engine and said cars to come together while said plaintiff was between said cars.” The amendment to the petition was as follows: “The plaintiff states that when he went between the engine and car that the cars were stationary, and claims that the engine backed--that is, ‘moved’--causing his injury; that the engineer in so doing was guilty of negligence. Plaintiff, also while making the claim above, and yet to conform the allegations to any possible phase of the proof already in, states that, if it shall be found to be a fact by the jury that the engineer released his air at the time the train stopped, then plaintiff claims that said releasing of the air while plaintiff was between the tender and the car was negligent, and caused plaintiff's injury.” It is not seriously claimed that this amendment to the petition was not filed at the close of the evidence and before argument was begun, but it is contended that it was filed without leave of court and without the knowledge of appellants' counsel. It appears, however, that the filing was regularly entered on the notice book, and that it was before the trial judge when his instructions were prepared. It also appears that appellants' counsel either construed the original petition as charging practically the same negligence as the amendment, or saw the amendment before the court's instructions were prepared, for they requested an instruction, which was in the following language: “There is but one charge of negligence against the defendant in this case to be considered by the jury. That is the charge that defendant's engineer, Gilbert, negligently backed the engine in question against plaintiff while plaintiff was between the engine and car in...