Skellenger v. Chicago & Northwestern R'y Co.

Rotiirook, J.

— The question to be determined is,- did the court err in directing a verdict for the defendant.

Counsel for appellant contends that when there is any evi *715 dence that tends in any degree to establish the cause of action, it is error to take the cause from the jury. On the-other hand, counsel for the appellee contend' that it is not the law that when there is any evidence, however slight, the case must go to the jury.

We do riot rind it necessary to determine that question in this case, because, taking the rule as stated by the appellant, we think the court did not err. ■ - -

The only evidence that the plaintiff received any-injury whatever was that of the plaintiff himself. -Now, in order to constitute any evidence which could properly be submit-, ted to the jury on account of the negligence of the engineer, it was necessary to show that the engineer disobeyed the signal given by the plaintiff, and kicked the train back after the signal to slow. The plaintiff stated that he gave the engineer the signal to'back up to make the coupling, and one signal to slack. lie then stepped between the cars, and took the link which was on- one,of the cars, and walked with that car, holding up the end of the link, and made the coupling, lie did not testify that .the train was kicked back. If the train moved no faster than plaintiff could walk, and was not kicked back as plaintiff alleged in the petition, there was no evidence of negligence upon the' part of the engineer. As to driving in the draw bar, there is no evidence whatever that any of the officers of the defendant had any knowledge that the draw bar was in any way defective, or that-it was defective in its original construction. Without some evidence on this question there could be no recovery for that defect, if there was any defect.

We think there was an entire want of evidence upon these material issues in the case, and we are the more ready tó so hold, because four or five men who were on the train, includl ing the'engineer and conductor, all testified that they had no knowledge that the plaintiff was injured as he claims he. was. It appears that he had his finger injured some time before that in handling coal-buckets, and., had some of.his *716 fingers on the same hand frozen, and that he had his hand done up with wrappings as a protection to the injuries previously received. The plaintiff did not claim in his testimony that he told any of the train men that he had been injured, excepting the conductor, and the conductor denied that he made any complaint to him. As was said in Starry v. D. & S. W. R’y, 51 Iowa, 419 : “It would have been the duty of the court to set aside a verd ict in favor of the plaintiff. Why, then, occupy the valuable time of the court, at the public expense, for the purpose of going through a useless form and ceremony.”

Affirmed.