Magee v. Chicago & Northwestern Railway Co. ( 1893 )

Rothrock, J.

The ease has once before been in this court upon an appeal by the defendant, and was reversed upon the ground that there should have been a verdict for the defendant because it did not appear that the defendant was properly chargeable with negligence, and because Klepper was negligent in alighting from the car as he did. The facts as they appeared bn the first trial are quite fully set forth in the former opinion, and need not be repeated here. See 82 Iowa, 249.

It is claimed in behalf of the appellant that the case now presented is-different, both in pleading and fact, from that presented on the former appeal. It is true that certain amendments were made to the petition, and some of the witnesses testified to additional facts, on the last trial, but all these amendments do not change the fact that Klepper negligently stepped from the ear upon the platform, and fell because the car was going in a direction opposite to that in which he supposed it was moving; and a careful examination of all the evidence, as now presented, leads us to the conclusion that the court properly instructed the jury to return a verdict for the defendant. The additional facts testified to by witnesses on the last trial are not so different from what they were on the first trial as to warrant a different conclusion from that reached upon the former appeal.

The judgment of the district court is affirmed.