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they separated some few feet, and then Voelker undertook to manipulate the coupler so that it would couple, and while he was thus engaged, without any signal from him and without any notice to him, another set of cars were kicked back, resulting in again forcing the cars together and crushing Voelker between them. The claim of the plaintiff and the issue presented by the facts was that the circumstances were sufficient to show that the expected coupling had not been made, and that Voelker had disappeared from the sight of the other members of the switching crew, evidently because he had gone between the cars, and therefore it was the duty of the others not to throw back another set of cars until they had received a signal from Voelker showing that it could be done with safety. The case did not make material the question of what the custom or practice was with respect to kicking back cars under ordinary circumstances, but did present the question whether ordinary care had been exercised in view of the exceptional situation created by the use of a defective and inoperative coupler, which resulted in a failure to couple the cars by impact, and required Voelker to place himself in a position of danger.

It is finally urged that the amount of damages awarded is excessive, and is not sustained by the evidence. It was shown that the deceased was 29 years of age at the date of his death, and his expectancy was 35 years; that deceased was sober, industrious, and of good habits, and was earning from $75 to $78 per month. At the former figure he was earning $900 per year, which rate of earning, continued for thirty-five years, would make the aggregate sum of $31,500. The jury awarded as damages the sum he would have earned in ten years, and the court can not say that this sum is excessive. It is a liberal allowance, but not so excessive as to justify the court in reducing the same.

Counsel for plaintiff has asked leave to file an amendment to the petition in case the court should hold that the allegations of the petition were lacking in any substantial particular, the application for leave to amend being based upon the provisions of section 3597 of the code of Iowa, which enacts that

“No variance between the allegations in a pleading and the proof is to be regarded as material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be shown by proof to the satisfaction of the court, and such proof must also show in what respect he has been so misled, and thereupon the court may order the pleading to be amended upon such terms as may be just.”

Amendments of this character may be allowed after verdict and judgment have been entered. (Davis v. Railway Co., 83 Iowa, 744; 49 N. W., 77.) Under the provisions of this section, in order to obtain a reversal of a judgment or a new trial on the ground of a variance between the allegations of a pleading and the proof, it must be proven to the satisfaction of the court that the party has been misled to his injury. Such proof has not been made in this case. As already set forth, if the defendant, when the charge was given to the jury, had then claimed that there was a material variance between the allegations and the proof offered, in the view taken thereof by the court, the situation could have been properly dealt with. The defendant did not then suggest that there was a variance between the allegations of the pleading and the evidence introduced, nor did the defendant suggest that it had been in any way misled with respect to the issues involved in the case or that it was taken by surprise by the charge of the court with regard to the issues involved in the controversy. Under these circumstances the defendant can not now be heard to say that it was misled by the action of the court or by any variance between the allegations of the petition and the evidence introduced, and therefore there is no need for filing an amendment on behalf of the plaintiff.

The motion for new trial is overruled and judgment will be entered on the verdict in favor of plaintiff.





NOTE.—The report embraced in this appendix is published as a separate document.

H. Doc. 181-21






NOTE.—The report embraced in this appendix is published as a separate document.

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