Schermer v. Gendt

3 N.W. 535, 52 Iowa 742

• Court: Supreme Court of Iowa
• Decided: December 8, 1879
• Status: Published

Opinion

Rothrock, J.

— It is doubtful whether the errors are assigned with the required exactness. Dut as there is but one question presented, and that is whether tho verdict finds sufficient support in the evidence, wo will pass the question -made as to tho assignment of errors by counsel for appellee, and dispose of the case upon its merits.

It must not be forgotten that this court is not a tribunal for the trial of law actions de novo. It is, therefore, useless to- argue that a verdict is not supported by a preponderance of evidence. We cannot disturb the verdict unless it is so barren of support in the evidence as to warrant tho finding that it was the result of passion or prejudice. In the light of the rule which has been so often announced, we cannot say as matter of law that the plaintiff was not entitled to recover. There was evidence tending to show that he was engaged in repairing the ice-box one day and part of another day. Upon the first day he observed the sausage-cutter, with its knives turned upward, close by tbe ice-box where bo was at work, and something being said about it to tho defendant plaintiff moved it into such a position that the knives were down. On the next day, when about finishing tbe work, be went near to the cutter and stood upon a bench, and while engaged in planing he fell upon the cutter, which had been turned with the knives up, and thus l'eeeived his injury. He supposed the knives were turned downward, as he had left them the day before, and therefore did not look to assure himself that there was no danger. Plaintiff testified that “it was tolerably dark in the room.” We do. not say that this is the substance of the evidence without conflict, but'that there was evidence from which the jury may have found the foregoing facts.

Counsel for appellant insists that there was the same necessity for plaintiff to have been on the alert for danger as applies to one crossing a railroad track. But the circumstances are different. A person about to cross a railroad track must bo required to apprehend the danger consequent upon an approaching train. In this case there was nothing- to excite apprehension of clanger. The knives were turned downward the day before, because they were thought to bo dangerous, and this the defendant knew. The plaintiff, therefore, was not put upon his guard to look for danger which he had no reason to suppose existed. The judgment must be affirmed. Plaintiff presents a certified copy of the supersedeas bond, and moves for a judgment thereon in this court. 'Judgment will be entered in accord with the motion.

Affirmed.