Rich v. Moore

Sherwin, J. [82] 1 2 [81] The following is a part of on,e of the instructions given by the conrt: “To render the defendant li [82] able, there must not only have been negligence on his part In some manner as charged, without contributory negligence of plaintiff or others caring for him, but such negligence of plaintiff, if shown, must have been the proximate cause of the injury.” It is quite obvious to us that the court intended to say that “such negligence of defendant, if shown, must have been the proximate cause of the injury,” and that the term “plaintiff” was inadvertently used. As the instruction' reads, it is erroneous, as, under the well-settled doctrine, any negligence of the plaintiff contributing to the injury complained of would defeat his recovery. Sherman v. Stage Co., 24 Iowa, 515. It is contended, however, that the language used was not misleading or prejudicial, when read with the other instructions on that particular branch of-the case. If we could say from the record that the jury read the word “plaintiff” as meaning the “defendant,” then there would be no difficulty in reaching the conclusion contended for. But we cannot do so. The other instructions on the subject gave the correct rule, it is true; but the instruction complained of was so worded that the jury may have construed it to mean the “plaintiff,” instead of the “defendant,” and, if it did place such construction upon the word used, we cannot say that it was error without prejudice, because we would then háve contradictory instructions on the same legal question, and this must be regarded as prejudicial error. Neville v. Railway Co., 79 Iowa, 232. 3 The plaintiff was permitted to prove, over the defendant’s objection, what he had earned per year, before his arm was taken off, and what he had earned since. This is assigned as error, on the ground that an amputation of the fingers of the right hand is conceded to' have been necessary, and the difference in his earning capacity should be confined to his condition "after his fingers were removed, instead of as a sound man. It is not always possible to pro [83] duce evidence which, shall meet exact conditions. The plaintiff was a farmer and a farm handl Whether he might have produced evidence tending to show what a man with the fingers of one hand gone might have earned at that work, we do not know; but men so afflicted are not common, and we think the verdict returned shows that the jury gave due considerence to this difference in physical perfection. Several other assignments of error are discussed, but none of them are of sufficient importance to require specific mention, except the claim that the verdict is not supported by the evidence. Without discussing the evidence in detail, we think the verdict receives such support on all material issues that we should not disturb it. For error in the instruction heretofore referred to, the case is reversed.