Armstrong v. Stewart

106 N.W. 512, 130 Iowa 162

• Court: Supreme Court of Iowa
• Decided: March 10, 1906
• Status: Published

Opinion

Bishop, J.

At the time of the accident which resulted in plaintiff’s injury he (plaintiff) was in the employ of defendant as a farm hand. Among the buildings oh the farm of the defendant was one, ten by twelve feet ground measurement, and one story in height. The building was of frame work, and a brick chimney extended up from the peak of the roof a distance of about eighteen inches. On the day of the accident plaintiff was called upon hy defendant to assist in moving such building to a new location five or six feet distant. It seems that the method adopted was to raise the building up, put under rollers, and.then by means of horses pull it to the desired location. The building had thus been moved part of the required distance when some of the rollers became disarranged. To permit of a readjustment, the several corners of the . building were pried up, a lever and fulcrum, consisting of a telephone pole and block, being used for the purpose, and the building then rested upon blocks. The building having been raised to the required height at one corner, and the lever being held down by three men, plaintiff went close to the building to adjust the blocking. While thus engaged, and before the blocks could be put in place, the lever broke without warning and the comer of the building came to the ground with a sharp jar. This resulted in the hricks of which the chimney was composed becoming dislodged, and several thereof came down, striking plaintiff and causing the injury of which he complains.

The grounds of negligence alleged were two; failure to take down the chimney before the work of removal was undertaken, and failure to warn and instruct. The answer denied negligence, and pleaded an assumption of the risk. Sixteen separate grounds were assigned in the motion for new trial, and the ruling on such motion was general.

We have uniformly refused to interfere with an order granting a new trial, except where a clear case of abuse of discretion is shown. Van Wagenen v. Parsons, 106 Iowa, 263. We cannot say that the instant record discloses a case calling .for interference. We have no means of knowing upon what ’ particular grounds, if less than the whole, the court based its ruling. It may have been concluded that the evidence did not warrant the verdict, or that passion and prejudice dominated the finding of the jury. Moreover, the court may have conceived the idea that the instructions to the jury did not fully present the questions, arising out of the facts shown, as to proximate cause of the injury sustained by plaintiff, and the responsibility of defendant for such cause.

On plaintiff’s appeal the order granting a new trial is affirmed. We have examined the petition for rehearing on the motion to dismiss defendant’s appeal, and finding nothing of merit the same is overruled.— Affirmed.