« ForrigeFortsett »
to a matter to which he testified only when cross- | as to avoid injury, if possible,—not that be examined as the witness of the other party. must use more than ordinary care but that the 5. The measurement in the presence of circumstance of knowledge changes the ap
the jury of a woman's foot and her plication of this ordinary test. leg 6 inches above the ankle, in a suit for in- Hanlon v. Keokuk, 7 Iowa, 488, 74 Am. Dec. juries to the foot and ankle, must be permitted 276. by the court wben there is a direct conflict as to Plaintiff should be held chargeable with such measurements by the medical men called by knowledge of the existing conditions, and, the the respective parties,—at least if the witness night being as dark as she testifies, she did not hereelf does not object.
do as an ordinarily prudent person would do 6. An instruction as to the duty of a under the circumstances, when she might have
municipality in respect to a walk, which says gone another route equally convenient. it must be kept "in a safe condition" for public travel, ought to be changed to say that the duty hill v. Brighton, 61 Iowa, 103; McGinty v.
Fulliam y. Muscatine, 70 Iowa, 436; Parkin that respect is to use reasonable and ordinary Keokuk, 66 Iowa, 725; Hartman v. Muscatine, care. (October 29, 1896.)
70 Iowa, 511; Plymouth v. Milner, 117 Ind.
324; Dale v. Webster County, 76 Iowa, 370. A PRE Distrito defend a fer framhou deuett if
The defect, if any existed, lay in the absence the District Court for Calhoun County in or want of a light at the time of the accident. favor of plaintiff in an action brought to re- Plaintiff certainly bad as much knowledge cover damages for personal injuries alleged 10 of such defect as defendant, and should bave have been caused by defendant's negligence. used ordinary care to avoid the danger. Reversed.
Achtenhagen v. Watertown, 18 Wis. 331, 86
Am. Dec. 769; Munger v. Marshalltown, 56 Statement by Kinne, J.:
Iowa, 216; Cressy v. Postoille, 59 Iowa, 62; The plaintiff claims that on the evening of O’Laughlin v. Dubuque, 42 Iowa, 541; Aline October 20, 1891, in company with another v. Le Mars, 71 Iowa, 654; Ely v. Des Moines, lady, she undertook to pass over Second street, 86 Iowa, 55, 17 L. R. A. 124. in ibe town of Manson, Iowa, on the sidewalk Defendant was not negligent witb reference crossing the same at a point near the northwest to maintaining the crossing in a reasonably corner of the crossing of Main street and Sec- safe condition. ond street, and that, without negligence on her Plaintiff had the whole width of a crossing part, and without knowledge of the existence perfectly safe in itself and free from defects. of an excavation, and of its close proximity to Sbe must know at her peril whether she is said crosswalk, she fell into an excavation, was within the limits of the crossing. violently thrown to the bottom of it, and se- OʻLaughlin v. Dubuque, 42 Iowa, 541; Alverely injured. She alleges that she is per- line v. Le Mars, 71 Iowa, 654; Macomber v. manently disabled by reason of said injuries, Taunton, 100 Mass. 255; Hubbell v. Yonkers, and asks damages in the sum of $4,000. She 104 N. Y. 434; Damon v. Boston, 149 Mass. alleges that said crossing was dangerous for 147; Richardson v. Boston, 156 Mass. 145; pedestrians to travel over by reason of a deep i Goodin v. Des Moines, 55 Iowa, 67. excavation and pitfall made in the earth, by Negligence cannot in any degree be predidefendant, at both sides of said crossing. This cated on the narrowness of the crossing. excavation was about 7 feet deep and extended Detroit v. Beckman, 34 Mich. 125, 22 Am. close up to the edge of the crossing, said cross- Rep. 507; Lansing v. Toolan, 37 Mich. 152. ing being but 3 feet wide. That on said Oc- Defendant was not negligent in respect to tober 20, 1891, and long prior thereto, the the existence of the excavation, and is not defendant had negligently and carelessly per- liable to plaintiff on account thereof. mitted said excavation to exist, and said cross- If defendant is liable it is because of a breach ing to remain in said unsafe and dangerous of a statutory duty. condition, and bad failed and neglected to Rusch v. Davenport, 6 Iowa, 443: Wilson v. construct or place a barrier or band rail to pre. Jefferson County, 13 Iowa, 181; Moroer v. Leivent persons passing over said walk from fall-cester, 9 Mass. 248, 6 Am. Dec. 63; Bates v. ing into said excavation, and failed to place any Rutland, 62 Vt. 178, 9 L. R. A. 363; Damon warping, light, or signal to indicate to or warn v. Boston, 149 Mass. 147. persons passing over said crossing of the exist- There was no statutory duty except to mainence of said excavation. It appears tbat tbe tain its sidewalks and crosswalks in a reasontown, for the purpose of laying its water mains, ably safe condition. had excavated a ditch extending along Second Tbe liability being created by statute, the street and across Main street. A water pipe rule is that only those using the streets in the had been laid in the ditch, but the excavation ordinary mode for travel can recover damages. had not been filled prior to the accident. The Taylor v. Peckham, 8 R. I. 349, 5 Am. Rep. defendant admitted its incorporation, and that 578, 91 Am. Dec. 235;
McArthur v. Saginaw, 58 the plaintiff's claim had not been paid, and de. Mich. 357, 55 Am. Rep. 687; Goeltz v. Ashnied all other allegations in the petition. The land, 75 Wis. 642; Agnew v. Corunna, 55 cause was tried to a jury, and a verdict re- Mich. 428. turned for the sum of $2,250, on which judg- A sufficient time had not elapsed between ment was entered. The defendant appeals. the placing of tbe light and the time of the ac
cident, to charge defendant with constructive Mr. E. A. Walton, for appellant:
notice. Although one has a right to use a defective Broburg v. Des Moines, 63 Iowa, 523, 50 Am. street or crossing kpowing it to be defective, Rep. 756; Thiessen v. Belle Plaine, 81 Iowa, yet he must, having that knowledge, use it so | 118; Klatt v. Milwaukee, 53 Wis. 196, 40 Am.
Rep. 759; Seward v. Milford, 21 Wis. 485; If the city builds a walk over a dangerous Doherty v. Waltham, 4 Gray, 596; Ball v. In- place it is the duty of the city to guard against dependence, 41 Mo. App. 469; Warsaw v. Dun. that danger, and that duty is equally strong lap, 112 Ind. 579; Weirs v. Jones County, 80 if the city renders a walk unsafe and dangerIowa, 351; Aylesworth v. Chicago, R. I. & P. ous by reason of an excavation underneath or R. Co. 30 Iowa, 459.
at the immediate side without guarding against A party cannot impeach his own witness. that danger.
Hall v. Chicago, R. I. & P. Co. 84 Iowa, Moor v. Burlington, 49 Iowa, 136; Rowell 311; Gardner v. Connelly, 75 Iowa, 205; Hum- v. Williams, 29 Iowa, 210; Duffy v. Dubuque, ble v. Shoemaker, 70 Iowa, 223; Hunt v. Hoover, 63 Iowa, 172, 50 Am. Rep. 743; Pittinger v. 34 Iowa, 77; 1 Greenl. Ev. $ 442.
Hamilton, 85 Wis. 356; Manderschid v. DuThe rule obtains in all its strictness where buque, 29 Iowa, 74, 4 Am. Rep. 196; Case v. the adverse party is called as a witness, and it Warerly, 36 Iowa, 545. matters not in such case that the witness may The sufficiency of a barrier, the sufficiency be subsequently called by the other party. of lights, or the sufficiency of any warning to
Branch v. Lery, 14 Jones & S. 428; Olive v. apprise pedestrians or people of the place of the Olive, 95 N. C. 485; Gabbett v. Sparks, 60 Ga. danger, is always a question for the jury. 582; Hunt v. Coe, 15 Iowa, 197; Hunt v. stier v. Oskaloosa, 41 Iowa, 357; American Hoover, 34 Iowa, 77; White v. State, 87 Ala. Waterworks Co. v. Dougherty, 37 Neb. 373; 24; Craig v. Grant, 6 Mich. 447; Roundtree v. Norroood v. Somerville, 159 Mass. 105; Sterling Tibbs, 4 Hayw. (Tenn.) 108; Fulton Bank v. V. Schiffmacher, 47 I]). App. 141; Duffy v. DuStafford, 2 Wend. 483; Ellicott v. Pearl, 35 U. S. buque, 63 Iowa, 172, 50 Am. Rep. 743. 10 Pet. 412, 9 L. ed. 475.
The ditch was per se a defect. Although The court erred in denying plaintiff's request put there for a lawful purpose it was nevertheto exbibit plaintiff's injured foot to the jury, less a defect, and the length of time it had reand declining to permit measurements to be mained there unnecessarily was a material conmade in the presence of the jury.
sideration as a part of the negligence of the Such evidence is always competent on bebalf city. of the party suing for personal injury.
Andreus v. Mason City & Ft. D. R. Co. 77 Langworthy v. Green Twp. 95 Mich. 93; Ed- Iowa, 671. wards v. Three Rivers, 96 Mich. 625; Schroeder Submitting one's person to the observation v. Chicago, R. I. & P. R. Co. 47 Iowa, 378; of the jury will not be allowed when there is Barker v. Perry. 67 Iowa, 146; Lanark v. abundant and competent evidence on both Dougherty, 153 III. 163: Carrico v. West Vir- sides. ginia, C. 4 D. R. Co. 39 W Va. 86, 24 L. R. Loyd v. Hannibal & St. J. R. Co. 53 Mo. 1. 50; Osborne v. Detroit, 32 Fed. Rep. 36; 509. Hess v. Lourey, 122 Ind. 225. 7 L. R. A. 90; It is at the pleasure of plaintiff to submit her Taylor, Ev. § 512; Abbott, Trial Ev. 599; person to view of the jury. Urion P. R. Co. v. Botsford, 141 U. S. 250, 35 Mulhado v. Brooklyn City R. Co. 30 N. Y. L. ed. 734; King v. State, 100 Ala. 85; Graves 370. v. Battle Creek, 95 Mich. 266, 19 L. R. A. 641; Richmond & D. R. Co. v. Childress, 82 Ga. 721; Kinne, J., delivered the opinion of the Shepard v. Missouri P. R. Co. 85 Mo. 629, 55 court: Am. Rep. 390; Hatfield v. St. Paul & D. R. 1. This case has once before been in this court Co. 33 Minn. 130, 53 Am. Rep. 14; Walsh v. and is reported in 90 Iowa, 585. It is insisted Sayres, 52 How. Pr. 334; 25 Cent. L. J. 3. tbat plaintiff's negligence contributed to pro
The defendant was not bound to fence in the duce the injury of which she complains. It is crossing to keep pedestrians from stepping off said that she was possessed of such knowledge or wandering therefrom into danger.
touching the excavation as should have warned O’Laughlin v. Dubuque, 42 Iowa, 542; her to have taken another way to her destinaAlline v. Le Mars, 71 Iowa, 654; Macomber v. tion, and thus bave avoided the danger. The Taunton, 100 Mass. 255; Hubbell v. Yonkers, evidence does not show that plaintiff had any 104 N. Y. 434; Damon v. Boston, 149 Mass. knowledge whatever of the existence of the ex147; Tower v. St. John, 33 N. B. 88; Ross v. cavation into wbich she fell. True, it appears Davenport, 66 Iowa, 548.
that sbe knew that the town was engaged in Appellant was not bound to fence in and putting in water. She had seen some of the guard the excavation.
ditches, and knew they were digging such Messrs. Botsford, Healy, & Healy, for ditches in the business part of the town; she appellee:
had seen one of these ditches on the day of Ordinary care only is required in such cases, the accident. She could have taken anolber but the circumstance of knowledge changes route just as direct to reach the place she was the application of this ordinary test.
going to. She was not under such circum. Hanlon v. Keokuk,7 Iowa, 488,74 Am.Dec. 276. stances negligent in attempting to go over the
A party is not to be denied relief simply be- crossing, having no knowledge of the existence cause be goes upon a street wbich he knows to of the excavation. She testified that it was so be dangerous.
dark sbe could not see the edges of the crossRice v. Des Moines, 40 Iowa, 642; Ross v. ing; that there was no light at or near the exDavenport, 66 Iowa, 548; Trowel v. Vinton, 77 cavation; and there is no claim that there were Iowa, 90; Kendall v. Albin, 73 Iowa, 242. barriers to keep people from falling into it. If
The city should make the streets and walks her testimony be taken as true, and it is sup. reasonably safe for the uses for which they are ported, she was in the exercise of due care. intended.
Counsel's argument is based upon the claim Bliven v. Sioux City, 85 Iowa, 351.
that wben one injured has knowledge of the
danger he must use such knowledge so as to from stepping over its side and falling into the avoid injury if possible. Such is no doubt the stream below. The duty imposed upon the law, but the facts of this case do not bring it town to keep its crossings in a reasonably within that rule. If the evidence to the effect safe condition for the use for which they were that there was no light at or near the exca- intended "extends, pot merely to the survation is to be believed, then it is clear that, face of the street or walk, but to those things having no knowledge of the excavation, and within its control which endanger the safety 10 light by means of which she might see ber of those using the street or walk properly. danger, and there being nothing to prevent her . . . In the statutory sense a street or sidestepping into the hole, and she being other-walk is defective when it is not in a reasonably wise in the exercise of due care, she is not safe condition for the use for which it is inchargeable with negligence in not discovering tended. . . . It may be due to the presence of and avoiding the excavation. Her knowledge something wbich is a menace to the safety of that the town was laying water mains does not the users of the way as well as to imperfect charge her with notice of this particular ex. construction or the absence of needed labor cavation. Even if she did know of the dan- or material.” Bliven v. Sioux City, 85 Iowa, ger she would not be negligent in attempting 351. The real question is, Is the defect comto go over the crossing if she exercised due care plained of in the walk itself, or so pear it as to in so doing. Hers was not a case of know. endanger the persons of those properly using it? ingly and consciously incurring danger, hence Rowell v. Williams, 29 Iowa, 210; Ross v. Darenthe cases relied upon are not applicable. port, 66 Iowa, 548; Duffy v. Dubuque, 62 Iowa, Counsel also argue that the only duty the town 172,50 Am. Rep. 743; Pittenger v. Hamilton, 85 owed to plaintiff was to keep its walks and Wis. 356. It was, then, a question for the crossings in a reasonably safe condition. He jury as to whether defendant was negligent, insists that if the crossing itself was in fact and as there was evidence tending to show good and sufficient the town was not liable such negligence, as well as evidence to the confor an injury received by one when off of trary, the finding of the jury in that respect said crossing. The following cases are should not be disturbed. cited: O’Laughlin v. Dubuque, 42 Iowa, 541; 3. The court told the jury in the seventh diAlline v. Le Mars, 71 Iowa, 654; Ely v. Des vision of tbe charge, in substance, that if the Moines, 86 Iowa, 55, 17 L. R. A. 124. These defendant had caused a light, sufficient to apcases in their facts are all different from the prise a person of ordinary prudence of the exone at bar. In the Dubuque Case the person istence of the ditch, to be placed at or near it was injured while crossing the street, not on a on the evening of the accident, and before it regular crossing, and it is said: "Sidewalks happened, then the defendant was not guilty and crosswalks alone are constructed for foot of negligence upless it was shown that defend. travelers, and he who, witbout some good and ant had caused said light to be removed, or bad sufficient reason, walks elsewhere and is in- actual notice or knowledge of said removal, jured should not be permitted to complain that and had sufficient time thereafter to replace he has been injured through the fault and peg. the same. It is urged that the verdict is ligence of the city.” In Alline's Case the in- against this instruction and against the evi. jured party was able to see the limits of the dence. There was much evidence tending to walk, and voluntarily and without necessity establish the fact that a lamp or lamps were therefor, stepped from the walk without know-lighted at the excavation on the evening of the ing she could safely do so. Ely's Case was accident, and before it happened. There was one where the pedestrian on a city street un. evidence also to the contrary. There was pecessarily left the street, went into an alley, much evidence showing that when the acciand fell into an area way. None of the cases dent occurred there was no ligbt at or near are controlling in the one under consideration. the excavation. There was an undoubted conIn this case the crossing was being made on flict touching this matter, and it cannot be the walk provided by the town, and owing to said that the finding of the jury was contrary the darkness plaintiff inadvertently stepped off to either the instruction or the evidence. of the crossing, into an unguarded, and, as Agaid, if the evidence had been undisputed some of the evidence shows, unlighted excava- i that the light was burning when the accident tion, which came up to the very edge of the occurred, still it would be a question for the crossing. The jury must bave found that jury, under the instruction, as to whether it was plaintiff was not negligent, and we cannot dis- a sufficient light to apprise one of the danger. iurb their finding in that respect.
4. Plaintiff called one Lemoin as a witness. 2. Counsel for appellant insist that the evi. and showed by him that he was mayor of the dence shows that the defendant was not negli. town at the time the accident happened: that gent. The argument is that as the defendant the town was then engaged in laying mains had a crossing which was, in and of itself, for water; that the excavations were made by good, and inasmuch as it bad a right to exca-contractors for the town. Defendant aftervate for its water mains, and because the ex. wards called the same witness, and he testified in cavation formed po part of the crossing walk, chief that lamps were lighted at the excavation therefore it cannot be held liable for an injury on the night of the accident, and before it hapreceived to one who, in the exercise of due pened. On cross-examination be was asked if care, and unable by reason of the darkness to be did not, on the morning after the accident, discover the limits of the crossing walk, and and in the presence of plaintiff and Mrs. Saf. not knowing of the excavation adjoining said ford, at the latter's house, in a conversation walk, steps into the same. On the same theo there, state “ibat the town was negligent in a city might erect a bridge over a river and not having the lights lit, as they depended rect no guard rails to keep the pedestrians on the moon, but after this they would
have the lights lit.”. This was objected then, it would seem, discharged. Afterwards to as "incompetent, and laying the ground for defendant called him as its witness, and asked impeachment of a witness whom they bave bim whether there were lights at the excavaused as their own witness, and for the further tion. On his cross-examination the plaintiff reason it is on something entirely imma asked the questions heretofore set out. If, terial.” The court said, “I do not understand when the witness was called by plaintiff, that a witness who is called by a party can- she had interrogated him regarding the lights, not be contradicted, and especially I think it and he bad testified that the excavation was is competent to ask this witness this question lighted, and plaintiff had then sought to show in view of the testimony be has given. The by him that he was mistaken, and, failing so defendant excepted to the ruling, and the wit. to do, had, in rebuttal, put witnesses on the ness answered, “I made no such statement.” stand to show that he had made contrary stateTo another question propounded to this wit- ments, we should have a case within the gen. ness touching a similar conversation with Eli-eral rule. If the plaintiff had not called Lenor Hall, the same objection was made, when moin as a witness, there is no doubt she might plaintiff's counsel said, “Plaintiff states that have impeached or discredited his evidence rethis question is not asked for the purpose of garding the lights at the excavation which was charging any admission upon the defendant drawn out when he testified on being called by because the conversation was had with the the defendant. It could not then be claimed mayor of the defendant town, but wholly for that she was impeaching or discrediting her the purpose of impeachment of the witness as own witness. When he in fact testified to the a witness. The objection was overruled, and matter as to which it was sought to impeach an exception taken, and the witness answered, bim, he was the defendant's witness, called by “I bave no recollection of making such state- it. He had before that time been called by
Mrs. Safford, Elinor Hall, and the plaintiff, and testified as to other matters, and plaintiff were each called by the plaintiff in been virtually discharged. He was no more rebuttal, and asked touching the conversations plaintiff's witness as to the matter of lights above referred to. In each case objection than if she had never called bim to the stand. was made and overruled, and the witnesses Plaintiff did not call out the testimony as to testified to the conversation. Appellant con. which sbe seeks to impeach Lemoin, but it was tends that the impeaching wittnesses con- elicited by the defendant wbile Lemoin was its tradicted Mr. Lemoin upon a matter imma witness. Whatever reason there may be for terial and irrelevant to the issue. In the the rule which prevents one from impeaching second place, it is insisted that it was not or discrediting bis own witness, there is none competent for plaintiff to impeach her own for extending it to a case like this. Courts of witness. We dismiss the first contention by high standing have refused to follow the gensaying that, in view of the statement of eral rule above mentioned, and hold that by counsel for plaintiff, this evidence is to be putting a witness on the stand one is not re. treated as offered for the sole purpose, as to sponsible for bis credibility in such a sense Lemoin, of laying the ground for impeach- that he is absolutely precluded, when surprised ment, and, as to the other witnesses, of im by adverse testimony, from showing that the peacbing Lemoin. Was it competent and witness bad made statements of the facts conreceivable for that purpose? It is no doubt a trary to his testimony. Selocer v. Bryant, 54 general rule that one will not be allowed to im- Mion. 434, 21 L. R. A. 418; Smith v. Briscoe, peach or discredit his own witness. 1 Green). 65 Md. 561; Johnson v. Leggett, 28 Kan. 605; Ev. § 442; Hunt v. Hoover, 34 Iowa, 79; Hall State v. Sorter, 52 Kan. 531; Crocker v. Agenv. Chicago, R. I. & P. R. Co. 84 Iowa, 316; broad, 122 Ind. 585. So much of the doctrine Gardner v. Connelly, 75 Iowa, 206; Humble v. announced in the above cases as permits the Shoemaker, 70 Iowa, 226; Clapp v. Peck, 55 witness, under such circumstances, to be imIowa, 272. This rule only prohibits impeach- peached or discredited by adverse testimony ment in three ways: First, calling witnesses showing that he had made statement of the to impeach the general character of the witness; facts contrary to his testimony, this court has second, proof of prior contradictory statements pot approved of. Hall v. Chicago, R. I. & P. by him; and, tbird, a contradiction of the wit- R. Co. 84 Iowa, 316; Smith v. Dawley, 92 ness by another where the only effect is to im. Iowa, 312; Humble v. Shoemaker, 70 Iowa, peach, and not to give any material evidence 226. But see Thomas v. McDoneld, 88 Iowa, upon any issue in the case. Becker v. Koch, 380; Smith v. Utesch, 85 Iowa, 381. We beld 104 N. Y. 400, 58 Am. Rep. 515; Cross v. in Artz v. Chicago, R. I. & P. R. Co, 44 lowa, Cro88, 108 N. Y. 629. It is said that “whether 286, a case where plaintiff had called a witness it be competent for a party to prove that a who testified to nothing of benefit to either witness whom he has called, and whose testi- party, and he was then dismissed, and the other mony is unfavorable to his cause, had previ- party, on cross-examination, drew out evidence ously stated the facts in a different manner, is not proper to be given on cross-examination, a question upon which there exists some di- that the witness must be regarded as called by versity of opinion.” 1 Greenl. Ev. § 444. It the defendant, therefore plaintiff might conwill be observed that this is not a case where tradict him. So, in the case at bar we bold plaintiff was surprised by the testimony of the that Lemoin was the witness of the defendant, witness when examined by her counsel. hence the court properly permitted plaintiff to When the witness was called by plaintiff interrogate him touching his former statements, nothing was asked him relating to the fact as and, as he denied making them, it properly perto whether the excavation was lighted. He mitted the plaintiff to impeach bin by calling was interrogated touching other matters, and witnesses to testify that statements bad been
made by him which were contradictory to the Mr. M. F. Healy: Well, I rather think he facts as testified to by him.
is in the case, and under the circumstances I 5. The character of plaintiff's injury, and its think we ought to object to the examination beextent as to permanency, was a material ques- ing made,-a further examination at tbis time. tion in the case. Her claim was that by rea- By the Court: Well, this matter bas gone far son of the fall several of the ligaments of the enough. This proposed examination and second and third toes” were ruptured and her measurement will not be allowed. You may ankle severely sprained; that the injury caused put it in the record, Mr. Reporter, that the severe and acute pain. Several medical men court, of its own motion, declines to permit it. testified for plaintiff that they had just meas. (To which the defendant excepts, both to the ured her foot at various places, and her leg 6 remarks and the ruling of the court.) inches above the ankle, and found it considerable larger than the other foot. At the point The remark of the court about not starting a above the ankle they say the leg was smaller measuring school was not proper. Counsel than the other leg at the same point., An equal for appellee says this requirement of the plainnumber of doctors, who had just measured the tiff that she permit these measurements to be injured foot at the same places, swore for the made was "unseemly." We may be permitted defendant, that it was the same size as the to disagree with counsel, and to say that the other foot, except in the measurement of the request was reasonable, and, under the circumleg above the ankle, which was no of an inch stances, it ought to bave been willingly comlarger than the other leg at the same point. plied with. Here were medical men differing It will pot admit of a doubt that this array of as to the measurement of this plaintiff's foot. medical men were not all telling the truth. If the measurements were as sworn to by the Either the injured foot and leg were, at the physicians who testified on part of plaintiff, it points where measured, the same size as was was a material fact, indicating an abnormal the other foot and leg at the corresponding condition of the injured foot. By making the points, or it was larger or smaller at some or measurements in the presence of the jury the all of said points of measurement. Now, actual facts would be shown by the best atclearly, when such skilled men differ so radi- tainable evidence, and the conflict between the cally touching a matter of mere measurement, learned doctors settled. There is nothing inas to which any number of men lacking in delicate in the measurement of a foot or arm skill, but possessed of ordinary good sense or ankle in a proper case. It is to be observed ought to substantially agree, because re- that plaintiff offered no objection to these lating to a fact capable of exact ascertainment, measurements being made. No ground of obit was proper to resort to the practical plan of jection thereto was stated by her counsel, but taking these measurements in the presence of tbe court refused to permit it to be done. the court and jury. Plaintiff being called to This court, in Schroeder v. Chicago, R. I. & P. the stand by the defendant, she was interro- R. Co. 47 Iowa, 378, said: “We are often gated as follows by its counsel:
compelled to accept approximate justice as the
best that courts can do in the administration Q. Mrs. Hall, you are the plaintiff in this of the law. But while the law is satisfied with action ?
approximate justice when exact justice cannot A. Yes, sir.
be obtained, the courts should recognize no Q. Are you the lady whose feet and legs rules wbich stop at the first wben the second is were ineasured in the adjoining room here just in reach. Those rules, too, wbich lead bearer before noon to-day?
the first should be adopied in preference to A. Yes, sir.
others wbich end at points more remote. Q. Will you kindly now remove your shoes To our minds the proposition is plain that a and stockings and permit the measurement to proper examination by learned and skillful be made here and now, in the presence of the physicians and surgeons would have opened the jury, in the presence of the plaintiff's witness, road by wbich the cause could have been con. Dr. Saunders, and the defendant's witness, Dr. ducted nearer to exact justice than in any other Martin? Will you kindly remove them, and way. The plaintiff, as it were, bad under his allow the measurements to be made now. own control testimony wbich would have reA. Shall I, Mr. Healy?
vealed the truth more clearly than any other Mr. T. D. Healy: I have nothing to say. that could have been introduced. The cause It is for the court to say.
of truth, the right administration of the law, 2. Do you refuse to do so, Mrs. Hall? demand that he should have produced it.'
Mr. M. F. Healy: The witness has been ex. It was also held in that case that the power of amined four times since yesterday, and I think the court was ample to enforce obedience to an there should be some limit to this matter some order compelling the party to submit to an ex: where, but at the same time we do not wish it amidation; so it was held ibat, as the plaintiff to appear in the position of objecting to the ex- bad the rigbt in such a case to exhibit bis inamination.
jured limb to the jury in order to show theerBy the Court: I think we have had enough tent of his suffering, he may in a proper case, of that; we are not going to start a measuring and under proper circumstances, be required school here.
to do the same thing for a like purpose upon Q. Do you refuse to permit the examination; the requirement of the other party. In Barker do you object to it?
v. Perry, 67 Iowa, 147, an action to recover for Ýr, Hall (from the audience): I object to a personal injury, the court, in speaking of
this subject, said: “This kind of evidence is ('Connell: Never mind, you are not in of an important and satisfactory nature. It
brings before the jury part of ihe res gesta, A.