Miller v. Chi., M. & St. P. Ry. Co.

• Citation: 30 N.W. 580,70 Iowa 302
• Court: Iowa Supreme Court
• Decision Date: 13 December 1886
• Parties: MILLER v. CHICAGO, M. & ST. P. RY. CO.

70 Iowa 302

30 N.W. 580

MILLER

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

December 13, 1886.

Appeal from district court, Keokuk county.

Plaintiff was an employe of the defendant on a construction train. He was a laborer, engaged with others in placing on the train timbers lying along the road. He rode on the train from a station, and when the timbers at one place were loaded he rode on the train to another place, and at night rode on the train to where the men stopped until morning. He was injured while attempting to get on the train. There was a verdict for plaintiff, judgment, and the defendant appeals.Chambers, McElroy & Carver, for appellant.

Smith & Tally and G. D. Woodin, for appellee.

SEEVERS, J.

1. The plaintiff asks that the evidence be stricken out because it is not sufficiently identified in the bill of exceptions. The bill of exceptions states that “the evidence taken in this cause by E. H. Warring, official reporter of this court, * * * is all the evidence taken therein. * * * Said report of evidence is entitled in the cause filed therein, April 9, 1886, and certified to by said reporter and the judge of this court, and marked ‘Exhibit A’ to this bill of exceptions.” The foregoing reference we understand is to the original short-hand notes, a translation of which was afterwards made, certified to by the reporter and judge, and filed in the clerk's office. But neither the original or translation was marked “Exhibit A,” and attached to the bill of exceptions. But it seems to us, notwithstanding this omission, the evidence is sufficiently identified. It is the evidence taken and certified to by the official reporter and judge that is referred to. As to this there could not be any mistake. The bill of exceptions in this case is similar to that in Town of Manson v. Ware, 63 Iowa, 548, S. C. 19 N. W Rep. 275, and materially different from Hill v. Holloway, 52 Iowa, 676, S. C. 3 N. W. Rep. 722, and Wells v. Burlington, C. R. & N. R. Co., 56 Iowa, 520,S. C. 9 N. W. Rep. 364. The motion to strike out the evidence must be overruled.

2. The negligence complained of is stated in the petition as follows: “The engineer backed up, neither giving any signal nor blowing any whistle. Conductor hallooed, ‘All aboard!’ and your petitioner was getting on board of a flat car in a hurried manner, and slipped in between the bumper and wood-catcher, and injured his knee and leg.” This petition was filed November 12, 1884, and was verified. In 1885 an amendment to the petition was filed, which need not be further mentioned. On the eighth day of April, 1886, a second amendment to the petition was filed, in which the negligence of the defendant is stated as follows: “Thereupon the conductor of said train called to said employes, ‘All aboard on the flat car!’ whereupon the plaintiff, without fault and negligence on his part, attempted to get on said flat car; and, while doing so, the engineer in charge of said train, * * * with gross negligence, * * * backed said train, whereby the knee of plaintiff was caught between the bumper and dead-wood of said car, and greatly injured.” This amendment to the petition was also verified. There is no evidence tending to show that the defendant or its employes were in any respect negligent, unless it consisted in not giving the plaintiff a sufficiently reasonable time to get on the train after all hands were directed to get aboard. Therefore the material allegation of...