Page:06-24-1920 -The Story of the Jones County Calf Case.pdf/40

Iowa. upon the following section of the statute: "In actions where there are several plaintiffs or several defendants the costs shall be appor- tioned according to the several judgments ren- dered, and when there are several causes of action embraced in the same petition, or several issues, the plaintiff shall recover costs upon the issues determined in his favor, and the defendant shall recover costs upon the issues determined in his favor." Code, § 2084. The contention is that under the first clause of this section it was mandatory upon the district court to apportion. the costs as asked. This particular provision of the statute has never been construed. Suppose plaintiff had recovered against one only of the seven alleged wrongdoers, on appellant’s construction of the statute he would only be entitled to a judgment for one-seventh of the costs as against him, although plaintiff had been successful in his action. Surely no construction should be placed upon the statute which would work such an inequitable result, unless its wording requires it, or such was the manifest intent of the legislature in its enactment. We see no reason for so construing it. These seven parties were charged with having commmittce a wrong against the plaintiff. The jury found that as to six of them the charge was established, but the seventh man was not liable. Why should the latter fact operate. to relieve the other six from the payment of one-seventh of the costs incurred in the action brought against them all for one cause, and to which all of the seven made a joint defense? The six are in no way prejudiced by the fact that as against a Seventh defendant there was no recovery had, except possibly by being required to pay costs which were made only in prosecuting the case as against the seventh man. What portion of the costs were thus made, if any, does not appear. This was not a case coming within this provision of the statute. It was not a case of separate judgments in favor of the plaintiff and against all of the defendants. It was simply a case where several were sued, and a recovery had as to all but one of them, a joint verdict and judgment as against all as to whom plaintiff recovered at all. If separate judgments had been recovered against the parties in different amounts, there might be some reason for claiming that the costs should be apportioned in a proper case. We do not think the statute bears the construction contended for. The motion was properly overruled, and the judgment below is affirmed.

{{remarks|Portion of unrelated case ommitted

(92 Iowa, 7.l.=i} CALKINS V. CHICAGO, M. &. ST. 1’. BY. 00.

(Supreme Court of Iowa. Dec. 15, 1894.)

APPEAL-ASSIGNhiENT or Ennons ——Dmao'r1No Viiuizror. 1. Wliere plaintiff, who was injured in uoupling cars, was asked. if he would have pull-

ed the pin and put it in the enirine, and replied, “ o, sir; I would not, for there. was no link in the engine," the lati:c1' clause of the reply was properly slricltcn out as irresponsire.

2. ’.L‘he ruling out of an explanatory answer to a question was not prejudicial. where an ex- plmliltion had been previously given.

3. Under Code. § 3207, requiring an assign- ment of error to point out the very error ob- jccted to, where it is impossible to l(D.pW what particular error is-relied upon, cxccptliy resort to the argument, the assignment is not soili- cient.

4.Vv'l3ore the petition charged ncgzligcnco in that after plaintiff had gone between the tender and the car, and tnlmn hold of the link to make 11 (‘(ll.l]lllllg', the engine hrnltos were re- leased, can.=.iiu:.: the engine to back down violent.- ly and injure plaintiff, and plaintiff tut-ii'iﬁ(.'(l that he could not tell whether, between the time he took hold of the link and the accident, the on- gineer applied or released the brake.r~sucl1 be- ing the only evidence on the qm-sting,»-—a ver- dict was properly directed for dcfcntinlit.

Appeal from district court, Linn county; 3. II. P1'estou. Jiu.

Action for d.-unagcs for a personal injury. Verdict and judgruient for defendant. Plain-

-tiff appeals. Aillrmed.

'1‘hompson gt: Stuart, for appellant. Mills & Keeier, for appelloo.

KINNIG, J. 1. The petition ehar;;c.=.l that. while plaintiff entered between the tender or the locomotive and a i.’rei-,:l:t ear to couple them together. and wliiie he was in the act of making said (!tl1I1)llil,‘.‘.', and without any negligzelicc on his part, “the e11,=;iueer in charge of said on;:in_e, czu‘clessly and 1'ecltlc-s.-.=ly, and Wltllout any warning: to pl:iini.lfi‘, suf1"ered the brakes of said en,-zine to become suddenly de- tricllcd froln the wheels, and in Coilsctluclico thereof.’ said en;.*,iue and tender were permit- ted to back down with great force and Vio- lence, by reason of which plaintiff was caught by the right hand between the draught irons of said tender and car, and three oi‘ his fingers on said hand inashec " so that they had to be and were alnpiiinicll. Defeliclant adniitized that pln.intia’[‘ was in its employ as a l)l'£'llLL‘.— man, as Claimed, and that he rcceivt.-d certain i11;i1n'ies to his right hand, and denied all oth- er allegations of thopetiiion. At the close of the evidence. and on motion 01‘ defendant, the court directed the jury to find a verdict for the defendant, which was done, and a judgment was entered thereon. '

2. It appears that on the night of Aprii 22, 1892, plaintiff was the llL‘i1Cl b1'al~:cm:1n upon
 * 1. freight train on defen(lui1t.’s road which W118

going up a steep grade called "I:1'aysviilo I-Iiil,” just south of the station oi‘ that name. Wliezi the train stopped. plaintiEi' went bnclt, cut Off eight Cars, and the engine pulled then; into Ilaysville. Attcr settling these cars out, the conductor rciualned at the switch, while plalntiif went back, with the engine, to get the remainder of the train. In backing down, steam was shut ofi.’ when the engine got upon the grade, and it moved by its own momen- tum, chcckcd occasionally by the air brakes, and came to a full stop about 10 feet away from the ears standing upon the grade.}}