Baird v. C., R. I. & P. R.

Day, J. 1. VBKDXCX : wSspeSai findings. — I. Upon request of the defendant the court gave the jury the following instruction: “ If you believe from the evidence that the car spoken of in the . r and evidence had a defect in the brake, and that by reason of such defect it could not be set stationary upon the track, and in consequence thereof was liable to get in motion, and that at the time plaintiff was to make said coupling said car was, by reason of said defect, in motion and approaching the car on which plaintiff was standing, and that said approach increased the danger of said coupling, or was liable to make it more than ordinarily dan • gerous to be between said cars when they came together, then it was plaintiff’s duty, in the exercise of ordinary care, immediately to take steps to avoid such danger, and if he failed to do this, and remained between said cars after discovering the car approaching him, if he did remain when he could have stepped out before reaching said alleged ditch, and before said cars -came together, this would be negligence such as would defeat his recovery. And this would be true notwithstanding you may believe from the evidence that he remained between the cars with the purpose of coupling the cars.” As this instruction was given at the instance of the appellant, its correctness is not brought in question by the appeal. So far as this appeal is concerned, this instruction embodies the law of the case, which it was the duty of the jury to follow, and if the general verdict is not in harmony with this instruction it should have been set aside. Caffrey v. Groome, 10 Iowa, 548; Savery v. Busick, 11 Id., 487; Farley, Norris & Co. v. Budd, 14 Id., 289; Petersen v. Ochs, 40 Id., 530. In their special verdict the jury found the following facts: Before the accident occurred the plaintiff knew that the detached car had no brake on it; he knew that a car not braked, or_set upon the track without a brake, was liable to move its position; the fact of the brake-chain being lacking caused, or assisted in causing, the detached car to fail to remain station [125] ary upon the track; the fact that the detached car was approaching from the west made the coupling that plaintiff was attempting more dangerous than it would have been if the car had been standing still, and made it more dangerous for plaintiff to remain between the train and said car than it would have been if said car had been standing still; it was unusually dangerous for plaintiff to be between cars, each of which was approaching the other, and the plaintiff knew that to be between cars, each of which was approaching the other, involved more danger than usually accompanied his ordinary duties; the plaintiff, after he saw that the detached car was approaching from the west, walked westward along the track for some distance, and remained inside the rails, at the west end of the train, until the cars had approached close together, before attempting to step out; the cars were about coming together when the plaintiff attempted to step out. It thus appears that the jury found specially the existence of every fact which the court directed the jury would constitute negligence such as would defeat the plaintiff’s recovery, with the exception1 of the single fact as to whether the plaintiff could have stepped out before reaching the ditch. There is not a particle of testimony that the plaintiff had not the physical ability to step out at any time before he came in contact with the ditch. In the absence of all proof upon that subject it must be presumed that there was no restraint upon his power of locomotion. Ilis remaining between the cars so long as he did was purely voluntary. The special findings show the existence of facts constituting, under the above instruction, negligence on the part of the plaintiff sufficient to defeat his recovery. The general verdict could not have been reached without finding that the plaintiff was not guilty of contributory negligence of such a character as should defeat a recovery. The general verdict is, therefore, inconsistent with the special findings and the foregoing instruction, and for that reason, if for none other, it should have been set aside. [126] 2. practice preme court: en try of final judgment. II. As we have seen, the jury found the existence of facts constituting such negligence on the part of the plaintiff as should, under the instruction above set out, have defeated recovery. Unon this ground the defiend- , , J ' J- , „ . , ant moved the court below tor judgment against the plaintiff notwithstanding the general verdict. The defendant insists that such j’udgment should now be rendered in this court. Section 3194 of the Code provides: “The Supreme Court may reverse or affirm the judgment or order below, or the part of either appealed from, or may render such judgment or order as the inferior court or judge should have done, according as it may think proper.” We could not properly render final judgment for the defendant here, without determining that the instruction above set out contains a correct statement of the law. But the correctness of that instruction is not, and cannot be, involved in this appeal. The instruction, if erroneous, is adverse to the party who succeeded in the court below, and, therefore, does not ajjpeal. If we should render final judgment against him here, we would preclude all inquiry as to the correctness of the instruction. If the jury had followed this instruction and returned a verdict for the defendant, or if the court had disregarded the general verdict, and entered a judgment for the defendant upon the special findings, the plaintiff could, by liis appeal, have raised the question as to the correctness of this instruction. No judgment should be entered here which would deprive him of that right. In what we have said we intimate no opinion as to the correctness of the instruction we have been considering, as we do not regard that question as before us. The cause will be remanded with leave to the defendant to insist upon its motion for a new trial, or for judgment notwithstanding the general verdict, as it may be advised. Reversed.