VoGt v. Chi., R. I. & P. Ry. Co.

• Court: Iowa Supreme Court
• Writing for the Court: WITHROW
• Citation: VoGt v. Chi., R. I. & P. Ry. Co., 164 Iowa 158, 145 N.W. 463 (Iowa 1914)
• Decision Date: 18 February 1914
• Parties: VOGT v. CHICAGO, R. I. & P. RY. CO.

164 Iowa 158

145 N.W. 463

VOGT

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Feb. 18, 1914.

Appeal from District Court, Scott County; A. P. Barker, Judge.

Action for damages for personal injury resulting from negligence. From a verdict and judgment for plaintiff, the defendant appeals. Dismissed.Cook & Balluff, of Davenport, F. W. Sargent and Robt. J. Bannister, both of Des Moines, for appellant.

Henry H. Jebens, Frank Cooper, and Bollinger & Block, all of Davenport, for appellee.

WITHROW, J.

I. Defendant brings this appeal from a judgment against it on a verdict in an action for personal injuries, based upon negligence.

The assignments of error are seven in number, the first four relating to instructions submitting to the jury the question of negligence, the next two upon the question of contributory negligence, and the last one in submitting the question of defendant's negligence and the plaintiff's freedom from contributory negligence.

It is the claim of the appellant that the evidence was insufficient to support a finding of negligence and freedom from contributory negligence. These questions and no others are covered by the assignments of error.

On the part of the appellee it is claimed that the record is such that the appellant has not the right to a review of these questions of this appeal.

[1][2][3] II. Upon the conclusion of plaintiff's evidence in chief, the defendant moved for a directed verdict, urging that there was no showing of negligence on its part, and also that it affirmatively appeared that the plaintiff at the time of the accident was not exercising due care. The motion was overruled, and defendant excepted. Following this, evidence on the part of the defendant was presented, upon the conclusion of which the court instructed the jury, the defendant excepting to all instructions, and verdict was later returned. No motion or exception challenging the sufficiency of the evidence to warrant a verdict against the defendant was presented at the close of all the evidence, nor was there any motion for a new trial.

III. It is the claim of the appellee that this court can only review on appeal those questions which were presented to the trial court, and which were ruled upon by it and excepted to. The right of this court in considering appeals in actions at law is to pass upon the questions of error only; and it has been held under the statute in many cases, and never to the contrary, that it will not consider as allegations of error matters upon which the trial court had not first had the opportunity to rule. Code, § 4105; Smith v. Warren Co., 49 Iowa, 336;Ash v. Scott, 76 Iowa, 27, 39 N. W. 924;Reynolds v. Insurance Co., 80 Iowa, 563, 46 N. W. 659.

In Schulte v. Railway, 124 Iowa, 191, 99 N. W. 714, this court held that a question as to the sufficiency of the evidence to support a verdict must be presented to the trial court on a motion for new trial, and cannot be first raised in the appellate court. In noticing this case, counsel for appellant urges that, under the rules of practice which governed at the time of the trial of this cause in the lower court, by preserving exceptions to the instructions when given, the record was sufficiently made to give to it the right to have considered on appeal errors in the instructions thus...