Milne v. Walker

Decision Date13 July 1882
Citation59 Iowa 186,13 N.W. 101
PartiesMILNE v. WALKER.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Fayette district court.

The plaintiff claims damages of the defendant, and for cause of such claim alleges that the defendant so negligently tied a certain stallion of the defendant in plaintiff's barn, and with such a weak and insufficient halter, that the stallion broke loose and injured a horse of the plaintiff, standing in a stall in said barn, by breaking his leg. He avers that the damage was caused by the negligence of the defendant, and without fault or negligence on his part. There was a trial by jury, and a verdict and judgment for defendant. Plaintiff appeals.Ainsworth & Hobson and Hoyt & Hancock, for appellant.

D. W. Clements and A. S. Hollenbeck, for appellee.

ROTHROCK, J.

1. After the plaintiff had introduced his evidence and rested his case, the court made the following oral statement: “As I understand this case, there is no use of going any further with it, as the contributory negligence of the plaintiff in this action is such that he cannot recover on it. The case will probably go to the supreme court anyway, and I think the case as it is is as good for the plaintiff as it can be made, and it is better not to make a long and expensive record. Gentlemen of the jury, you will bring in a verdict for the defendant.” The plaintiff objected to the court instructing the jury orally, and insists that the judgment should be reversed for this error. It is true, the statute requires instructions given by the court to the jury to be in writing. But this instruction was really not an instruction by the court to the jury, directing them as to the law of the case. It was no more than a direction to them to return a verdict for the defendant. If this direction was warranted from the evidence, or rather from the want of evidence, in the case, the failure to put the order to the jury in writing was error without prejudice. We would surely not be asked to reverse the case and send it back for a new trial because of an error which did not and could not influence the verdict.

2. The undisputed facts are that in the spring of 1878 the defendant was the owner of a stallion which he moved from place to place, making the season. He called on the plaintiff, who is a farmer, and made application for a stopping place with his horse, to which the plaintiff assented. The stallion was by the plaintiff's direction put in a stall in the barn, and in the same part of the barn, and without any barrier being placed between them, the plaintiff kept a gelding and a mare. The three animals were kept in their stalls by means of halters, with which they were tied. On the defendant's second or third trip in going his...

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