the verdict is supported by the evidence. ! [6] As plaintiff was employed in the first As distinguishing this case from many instance for ironing by hand and continued which are cited for the appellant, it may in that employment for about four months, well be observed that plaintiff was a young the manager had no reason to assume that girl, inexperienced with reference to ma- she was familiar with the operation of a chinery in general, and without knowledge mangle and the dangers incident thereto. of the particular danger involved in attempt- He testified that he made no inquiry of her ing to remove from the roller articles which on the subject when he directed her to work would cling to it, unless such knowledge is at the mangle, and gave her no warning or to be imputed to her as a matter of law; instruction as to the danger of such work. that the danger of having her fingers caught Under these circumstances, we have no ocbetween the third roller and the cylinder of casion to discuss the question argued by the mangle was not incident to the ordinary counsel as to whether plaintiff was bound by operation of receiving the articles as they representations made as to her experience by usually came out of the mangle, and arose the girl who suggested her employment. only when the effort was made in special cases to prevent the articles from adhering to the third roller, and thus becoming wound up in the machine; that such operation was one necessary only in an emergency and re quiring quick action; and that, as the evidence tends to show, plaintiff had heard other employés often scolded for allowing the articles to become wound around this roller. We think that we ought not to say as a matter of law that the danger of this particular operation was so obvious that it must have been appreciated and assumed by the plaintiff. [7] 2. The court instructed the jury that under the factory act (Code Supp. 1907, § 4999a2) the defendant was negligent in failing to properly guard the mangle against the danger of injury to an employé engaged as plaintiff was in its operation, and it is contended for appellant that the court erred in thus assuming as a matter of law that the opening between the rollers between which plaintiff's hands passed when she received her injuries could have been covered or guarded without in any manner interfering with the use or efficien[3, 4] What has been said as to assumption if it was practicable in the ordinary, propcy of the machine. Counsel concede that, of risk is necessarily applicable to the duty to warn. If the risks and dangers of the er, and efficient use of the machine to so employment were not such that the plaintiff, guard this opening as that the injury to as a reasonably prudent person in view of plaintiff would not have resulted, then the deher age and experience as known to the defendant was negligent in not providing the fendant, must have appreciated them, then it was the duty of the defendant charged with knowledge of such risks and dangers to instruct the plaintiff with reference thereto, and defendant was negligent in not doing So. From the evidence we think it clear that such an instruction and warning should have been given in this case. [5] The complaint that the instruction as to assumption of risk and duty to warn was confusing, in that it referred to both subjects, is without merit. Under the facts in this case, the two questions were so closely related that no prejudice could have resulted from treating them in the same instruction. The jury was specifically told that the burden was upon defendant to show that plaintiff assumed the risk, and in another instruction was properly advised that the burden of showing negligence in failing to warn was upon plaintiff. With reference to the duty to warn, it is contended, however, that the court erred in striking out testimony of defendant's manager, who employed plaintiff, that he hired her for an experienced girl, and supposed that she knew the dangers of the machine. He explained, however, that his sole information as to her experience was that she said she had worked in another laundry, and that the girl who suggested his employing plaintiff as a substitute said that she machine with such guard, but they contend that there was no such evidence, or at most, only such evidence, as would warrant the submission of the question to the jury. The sole and uncontradicted evidence on this point was that of the witness Estes, who was engineer in defendant's laundry at the time the plaintiff was injured, and who, at the time of giving his evidence, was general overseer and engineer of another laundry, in charge of the machinery and its operation. This witness testified that, the opening between the second and third rollers through which plaintiff's hands must have passed in order that her fingers should be caught between the third roller and the cylinder was about six inches in width, and the entire length of the cylinder; that at each end of this opening there was a solid frame; and that, as it seemed to him, "there could have been a board or a wire screen, or anything like that, placed there to obstruct your hands or anything from getting in. It could have been put in a niche in the frame, and taken out at leisure whenever it needed to be." It cannot be doubted under the record that this witness was qualified to testify as an expert whether it was practicable without interfering with its proper use to so guard the machine as that an injury such as resulted to plaintiff would not occur. But the real objection of counsel seems to be that he did is not involved in an affirmance of the rulings of the trial court. This is not said as indicating any doubt with reference to the last announcement of the court on the subject, but as a reason why a further discussion in view of the criticism of the cases by appellant's counsel is now omitted. however, in construing his evidence in con- nouncement of the views therein expressed nection with other facts which were established without controversy, such as that the articles to be ironed were carried around on the surface of the cylinder between it and the three rollers, and were only taken out after they had passed under the third roller, and that the only occasion of seizing an article which started back on the surface of the third roller was to prevent it from wrapping around that roller, and thus obstructing the machinery. It seems to be plain that for the practical operation of this machine it was not necessary that the employé receiving the articles coming from it should reach with her fingers into the zone of danger between the second and third rollers. If she failed to catch the article in time when it stuck to the surface of the third roller, the machine could be stopped, and the article loosened without risk. The practical operation of the machine did not involve the putting of the fingers inside the zone of danger, and the risk that they would be put in a position of danger could plainly have been obviated by some guard between the second and third rollers near the surface of the cylinder. There was no discrepancy in the evidence as to any of the essential conditions, and the trial court did not err, therefore, in telling the jury that the failure to provide such a guard constituted negligence. [8] 3. Defendant's manager as a witness, having shown himself to be familiar with the construction of laundry mangles generally in use, was asked to state whether prior to the injury of the plaintiff he had ever seen the rollers on the receiving side of a steam mangle in any way covered or guarded. His answer, "Never," was stricken out on motion of plaintiff's counsel; previous questions calling for the same information from the witness having been objected to and the objections sustained. We think the court did not err in excluding evidence of this character. It was no doubt competent for the defendant to show the general use of mangles in design and plan such as the one in question in other laundries conducted with reasonable care and prudence (Kirby v. Chicago, R. I. & P. R. Co., 129 N. W. 963), but witness's statement that he had never seen the rollers on a steam mangle covered or guarded would not itself tend to show a custom prevailing in laundries conducted with care and prudence to leave such rollers unguarded. As no further effort was made in behalf of defendant to establish any such custom or usage, we think that the answer slightest assistance to the defendant on the issue whether it was practicable to guard such rollers. The court did not err, therefore, in striking out the answer. [9] 4. A music teacher testified as a witness that plaintiff had taken lessons in music on the piano under her for three years; that she was an apt pupil, and had capacity for becoming an expert musician; further, that she would have completed her course in about four years, and would have become an expert teacher. The witness was then allowed, over objection for defendant, to testify as to the average earnings of a music teacher. The rulings of the court in this respect are assigned as error, and it is contended that, while it is proper to show the skill and capacity of the person injured in his calling, it is not proper to show what he might have earned in some other calling. But the answer to this position is that plaintiff had been preparing herself for this call The court instructed the jury on the theory that the danger involved in working about this unguarded machine, like any oth-stricken out would not have been of the er risk or danger of the employment due to the negligence of the defendant, might have been assumed by plaintiff, and left it to the jury whether, under the evidence, it had been so assumed. The question does not arise in this case whether, prior to the enactment of the recent statute abolishing the defense of assumption of risk as against negligence in properly guarding machinery, such defense was available to a defendant negligent in failing to provide such guard. We need not therefore follow counsel for appellant in their discussion of this subject, nor notice their criticism of our recent case of Stephenson v. Sheffield Brick & Tile Co., 130 N. W. 586, in which we announced as the result of prior recent holdings of this court "that an employé does not assume the risks incident to the use of a machine which is not guarded as required by statute, although he knows of the unguarded condition, and apprehends the danger incident to the use thereof." It is perhaps proper to say, how-ing, and had shown aptitude for it, and ever, that the opinion in the case of Tyrrell v. Cain, 128 N. W. 536, cited in support of that proposition, has since been withdrawn on a petition for rehearing, and will not therefore appear in the official reports of the court. The opinions in these cases had not been announced when the present case therefore it was not, as to her, a mere conjectural possibility. Even if the general subject of inquiry as to the earnings of music teachers was not a proper one, an analysis of the record justified the conclusion that the question as finally put related only to how music teachers were paid, whether by the les tion could not have been prejudicial to defendant, failure of counsel to strike out so much of the answer as tended to indicate what the average earnings of a music teacher would be left no prejudicial error in the record on which we would be justified in reversing the case. [10] 5. It is contended that the verdict is excessive, and, if this were an ordinary case of the mere loss of a hand or a foot, we would be inclined to think the allowance larger than we could sustain; but, in addition to the loss of earning capacity, the evidence showed that plaintiff suffered excruciating torture before her hand could be removed from the mangle, that she has since suffered and will continue to suffer much bodily pain on account of the injury, and that she has suffered, and must still suffer, much distress and anguish on account of her disfigurement, which means infinitely more to a young girl than it would to an adult male, and taking these elements into account, as we are justified in doing, we are not inclined to require the remission of any portion of the verdict as a condition for the affirmance of the case. A collation of cases in which verdicts of similar or greater amounts have been sustained in this court or in other courts would serve no useful purpose. The case is peculiar in its facts, and we are satisfied to allow the verdict to stand. The judgment is therefore affirmed. PINE BROS. v. CHICAGO, B. & Q. R. CO. (Supreme Court of Iowa. Nov. 18, 1911.) CARRIERS (§ 213*)-TRANSPORTATION OF LIVE STOCK-NEGLIGENCE OF CARRIER. and died soon after reaching its destination. The theory of plaintiffs' case, as alleged in the petition and presented upon this appeal, is that the transportation was unreasonably and unnecessarily delayed, and that, by reason of such delay and resulting exposure to inclement weather, the horse contracted the disease of which it died. Appellant insists, on the other hand, that there was in fact no material delay, and that the record discloses no evidence on which a verdict charging it with negligence as alleged in the petition can be sustained. After considerable investigation, we are forced to the conclusion that appellant's contention must be sustained. Bushnell, Ill., and Diagonal, Iowa, are both stations upon the defendant's railway system. The plaintiffs reside at the placé last named, but were personally present at Bushnell when the horse was delivered for shipment. The defendant's freight schedules upon which the road was then being operated were so arranged that a car sent out of Bushnell on the afternoon or evening of May 5, 1908, and making all the connections provided for in said schedules, would not arrive in Diagonal until about noon of May 8th. There is no claim that plaintiffs did not fully understand the time required to make this trip, or that they asked for or received any assurance that the progress of their car could or would be accelerated beyond the rate indicated by the schedules. The shipment was delivered to the defendant about the middle of the afternoon of May 5th. It was accompanied by the plaintiffs, or one of them, and it arrived at its destination substantially on schedule time. No fault appears to be found by the plainA carrier is not liable for the death of a tiffs with the train schedules, but they say horse due to the length of time taken in trans- that, after discovering signs of sickness in portation, where it arrived at its destination the horse, they applied to the defendant's substantially on schedule time, and there is no evidence that there were faster freight trains agents to hasten the transportation by atby which the destination could have been soon-taching the car to a passenger train or otherer reached; the failure to accelerate the wise, and that such requests were not grantmovement by attaching the freight car to a passenger train not being negligence. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.*] Appeal from District Court, Ringgold County; H. M. Towner, Judge. Action to recover damages for injury to property in course of transportation over defendant's road. Judgment for plaintiffs, and defendant appeals. Reversed. Spence & Smith and Miles & Steele, for appellant. C. J. Lewis and V. R. McGinnis, for appellees. WEAVER, J. The appellees purchased a valuable stallion at Bushnell, Ill., and delivered it to the appellant at that place to be shipped to their home at Diagonal, Iowa. The horse, which was accompanied by one of its owners, was taken sick during the trip, ed. We think there are obvious reasons why failure to accelerate the movement of freight by attaching freight cars to passenger trains there is here no evidence of other or faster should not be held culpable negligence, and tination of plaintiffs' car could have been freight trains by the aid of which the dessooner reached. It is true that the train taking the car west from Galesburg could have taken it to the junction point at Osceola, Iowa, on the evening of May 6th, instead of leaving it to be picked up by succeeding trains which brought it to said junction the following morning, but the movement of the car south from Osceola would not thereby have been hastened for the only connecting train did not leave there until about noon of May 7th, nor would it have been sooner forwarded out of Van Wert the last junction point. The charge of negligence made by the plaintiffs appears, therefore, to be without evidence to support it, and it follows that the judgment appealed from must be, and it is, reversed. STATE v. NATHOO. (Supreme Court of Iowa. Nov. 14, 1911.) 1. RAPE (53*)-KNOWLEDGE OF INSENSIBLE FEMALE EVIDENCE. Evidence held insufficient to sustain a conviction of assault on an insensible female with intent to have carnal knowledge of her. [Ed. Note.-For other cases, see Rape, Cent. Dig. $$ 78-81; Dec. Dig. § 53.*] knowledge should have been stricken as not responsive. Cent. Dig. 88 861-863; Dec. Dig. § 248.*] [Ed. Note. For other cases, see Witnesses, 7. RAPE (§ 16*)-ELEMENT OF OFFENSE-ASSAULT WITH INTENT TO RAPE. An instruction defining an assault with intent to commit rape, that one who makes an assault on a female with intent to have sexual intercourse with her is guilty of an assault with intent to commit rape was erroneous as omitting the intent to have intercourse with force and against the will of the female assaulted. [Ed. Note.-For other cases, see Rape, Cent. Dig. §§ 15-19; Dec. Dig. § 16.*] 8. CRIMINAL LAW (§ 703*)-TRIAL-OPENING STATEMENT FOR PROSECUTION. An attorney ought not to be permitted to 2. CRIMINAL LAW (§§ 415, 419, 420*) - EvI- get a matter before a jury in his opening stateDENCE-HEARSAY. ment which he must know he will not be allow In a prosecution for having carnal knowl-ed to prove. edge of a female while alleged to have been insensible, evidence that on her being examined by a physician in defendant's presence she stated in answer to his question that there had been no other man with her was inadmissible as hearsay, and self-serving. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 937-949, 973-983; Dec. Dig. $$ 415, 419, 420.*] 3. RAPE (§ 48*)-INSENSIBLE FEMALE-OTHER INTERCOURSE EVIDENCE. In a prosecution for carnal knowledge of an insensible female, evidence of a statement made by prosecutrix in defendant's presence to a third person that there had been no other man with her did not tend to prove that such statement was true. [Ed. Note. For other cases, see Rape, Cent. Dig. 88 67-69; Dec. Dig. § 48.*] 4. CRIMINAL LAW (§ 814*)-INSTRUCTIONSAPPLICABILITY TO CASE-RAPE. Where, in a prosecution for carnal knowledge of an insensible female, a child of which prosecutrix had been delivered was exhibited to the jury, and its racial characteristics commented on, but there was no evidence as to defendant's race, it was error to refuse to charge that the jury should not consider any alleged resemblance between the child and defendant for any purpose in the case, but could consider its appearance and characteristics as tending to establish the race to which it belonged, and, if the jury found that the alleged intercourse between prosecutrix and defendant had been otherwise satisfactorily proved, they might consider the child as corroborative of the intercourse, but could not consider it as evidence otherwise than as stated. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1659; Dec. Dig. § 703.*] 9. CRIMINAL LAW (§ 714*)-TRIAL-MISCONDUCT OF ATTORNEY. An attorney should not base an argument for conviction on the court's order overruling defendant's motion for a verdict of not guilty for insufficiency of evidence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1664; Dec. Dig. § 714.*] 10. CRIMINAL LAW (§ 730*)-TRIAL-MISCON DUCT OF ATTORNEY. Where an attorney in argument is guilty of misconduct in stating facts not sustained by the evidence, the court on objection should correct the statement and admonish the attorney not to repeat it; it not being sufficient to relegate the question as to whether the statement was sustained by the evidence to the jury. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.*] Appeal from District Court, Polk County; Lawrence De Graff, Judge. The defendant was accused of having carnal knowledge of an insensible female, and convicted of having assaulted such female with intent to have carnal knowledge of her. He appeals. Reversed and remanded. A. D. Pugh and J. M. Parsons, for appellant. George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State. LADD, J. [1] The accused is alleged to [Ed. Note.-For other cases, see Criminal have produced "such stupor of mind and Law, Dec. Dig. § 814.*] 5. CRIMINAL LAW (§ 404*)-EVIDENCE-PROFERT OF CHILD. weakness of body" of Margaret Miller as to prevent effectual resistance by "the use of means to the grand jury" unknown, and thereupon to have carnally known and abused her. In order to prove this charge, the state relied entirely on circumstantial evidence. No one testified that defendant had had intercourse with Margaret, nor see Criminal In a prosecution for carnal knowledge of an insensible female, profert of a child of which prosecutrix had been delivered was incompetent to show resemblance, even in connection with evidence that accused and prosecutrix were of different races. [Ed. Note.-For other cases, Law, Cent. Dig. § 891; Dec. Dig. § 404.*] 6. WITNESSES (§ 248*)-EXAMINATION-RE SPONSIVENESS OF ANSWER. was there testimony that she had not indulged in intercourse with another. Some one must have been unduly intimate with her, for Where a witness on being asked how many she was delivered of a child May 11, 1910. times defendant was at her residence answered Though the record is silent as to whether "I did not keep track because I trusted the man and did not think it was necessary," the defendant was a physician and authorized part of the answer stating excuse for want of to practice as such, it appears that in May For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes or June, 1909, he was called upon by Mrs. | weakness of body as to prevent effectual Miller to treat her daughter, then 15 years resistance, or have such carnal knowledge old past, and visited her once or twice be- of an idiot or female naturally of such imfore giving psychical treatments. The first becility of mind or weakness of body as to of these was administered in the evening prevent effectual resistance, he shall be of July 3d in the parlor of Mrs. Miller's punished as provided in the section relating house. This was a front room with bay to ravishment." There was no evidence window, and was connected with the room tending to prove Margaret to have been back by an arched doorway hung with por- naturally of such imbecility of mind or tieres. Margaret was lying on the lounge, weakness of body as to prevent effectual and, after talking for a few minutes, de- resistance, nor was there any showing that fendant caused the curtains over the win- the accused administered to her any subdows to be drawn down, the portieres drawn stance producing stupor, imbecility of mind, together, and requested Mrs. Miller to leave or weakness of body. If this effect was the room, take the light with her, and bring produced, other means must have been rehot water and cloths, explaining that "he sorted to. What could these have been? didn't want Margaret's mind on anybody Massage of the body may have excited the but himself, as it would interfere with the passions, and in that manner have obviated treatment." She brought the water and resistance, but not in the way contemplated cloths, and, after withdrawing, he directed by this statute, by producing stupor or Margaret to remove all her clothes, and imbecility of mind or weakness of body. In while she stood he massaged her entire per- that way, and by the administration of the son, and, after this was done, had her lie douche, she was eased and fell asleep. Was on the floor with head on the end of the this a natural sleep, or was it the result lounge when he administered the douche of hypnotic or other influence exerted on (being between her legs when doing so). the girl? The record throws no light on This eased her, and she became drowsy and this inquiry. For all that appeared on the fell asleep, but would waken upon being trial, she fell to sleep naturally and as a spoken to by him. This treatment seems consequence of the treatments begun at to have been repeated several times, but her mother's solicitation, and continued with always in the parlor, save that on one oc- the acquiescence of herself and daughter. casion it was begun in a bedroom, and, on The most that can be said is that there was interruption, completed in the parlor. At opportunity for the accused to have had no time were he and Margaret alone in the intercourse with Margaret when asleep. It house. On two occasions he inserted, or at is universally held, however, that opportunileast pretended to insert, a rubber tube, ty alone is not enough to justify the consaid by Margaret to have caused pain. The viction of an offense like that charged, and, treatments usually were begun at dusk, and even if it were, the situation was at the completed at about midnight. Subsequently solicitation and with the acquiescence of defendant suggested a room on the second Margaret and her mother, rather than floor where his treatments would be un- through "other means" exerted by defendinterrupted, but, as this was not provided, ant. For all that appears in this record, he did not call again until the following he may have been a physician and entitled May. It is to be inferred from the evi- to administer treatment thought suitable to dence that, though furnishing medicine, he the condition of the patient, have acted in relied largely on electric and psychic in- entire good faith, and the child have been fluences to aid in effecting a cure. On May begotten by another. No one testified that 8, 1910, Dr. Sanders examined Margaret, he was its parent, nor did prosecutrix deny and found her to be pregnant. Mrs. Miller that it was begotten by another. Someimmediately informed defendant, when he thing more than a suspicion ought to be accused her of wanting to blackmail him, established by the evidence in order to jusbut promised to call to see her daughter. tify conviction of a crime. The evidence He did so, accompanied by Dr. McCartney, was insufficient to sustain the verdict. and, on seeing Margaret, said to her that there was nothing the matter except a large blood clot which would pass away most any time, and, then taking her by the right hand said, "I swear to God I am innocent," and added, "Anything money can do for you, you shall have." Such was the evidence on which the state relied for conviction of the offense defined in section 4758 of the Code. "If any person unlawfully have carnal knowledge of any female by administering to her any substance, or by any other means producing [2] 2. Dr. McCartney testified that Margaret told defendant that Dr. Sanders had said she was either pregnant or had a tumor. "Q. What did Nathoo say to that? A. He said 'that cannot be.' Q. What, if anything, did Margaret say at that time in regard to other men? (Objected as incompe tent, a self-serving declaration.) Court: You may state what was said there by Margaret to the defendant. A. I believe she said there had been no other-the expression she said there had been no other man with her." A motion to strike the answer |