_in_ andverf8 dl0t’ dissenting. —It is in effect conceded by the foregoing opinion, that there was no error in the instructions given to the jury by the court below. Indeed appellant’s counsel complain of but three instructions, and no part of the majority opinion holds these to be erroneous. The case is reversed, however, as I understand, upon -the ground that the “ charge lacked definiteness,” upon the question of “ the proximate and remote causes of the injury to Rogus.” Or, as the ground is stated in the conclusion, the object in granting *27“ a new trial is, tliat the questions arising may - be once more carefully and intelligently adjudged upon the principles of law herein laid down.”
Now, if I understand the instructions, they do not differ in any one essential particular from the law as stated by the majority. They are full, clear, definite and explicit. The law governing the liability of the company, and its duty toward infants and insane persons, and those like the deceased, in a besotted state of intoxication, is clearly and correctly stated. At least no objection was taken to the law as given on this subject, and no further or explanatory instructions were asked by appellant. Nor does the opinion of the chief justice hold such instructions erroneous. Not only so, but these instructions leave the .questions of fact to the jury. That is to say, they are left to determine whether the act of the company’s agents was or was not the proximate cause of the injury or death. And it seems to me that all the questions arising have been “once carefully and intelligently adjudged upon principles” fully stated by the court below; principles not in conflict with the opinion of this court, and I can see no reason for “ once more ” going over the same ground.
That the deceased was very drunk; that he was quite unconscious of all that was passing around him ;■ that he was treated with unnecessary severity and harshness at the time he was expelled from the cars; that he was left alone in a very-dark night, in a helpless condition, in a place of great danger, were facts which the. jury could very reasonably find from the testimony. That he was killed, and by defendant’s engines and cars, is an admitted fact. This occurred, it is true, some - hours afterwards, and the train passing over him was another and different one from that from which he was ejected. What his state and condition was at the time of the injury, the testimony does not show If he had been killed near the station where *28left, or within a short time thereafter, this verdict would not probably have been disturbed. And yet if the act of the defendant in removing him from the cars, and leaving him in an unconscious state, was .the proximate cause of his death, then the liability is just as clear as if it had occurred two minutes afterwards. And this question of fact was, as I think, very perspicuously submitted to the jury by the court below. True, all the law upon the subject of negligence and diligence was not stated. The court might have elaborated more; but whether the jury would have been thereby more enlightened or confused, may well be doubted.
_lm_ pindeflnitea 1 in‘ But assume that the instructions, correct as far as given, were “lacking in definiteness;” that the minds of the jury were not called specifically to the point, upon which, according to the opinion of the majority, the case turned, whose fault was it? Not the appellee’s certainly. Nor should the appellant complain. No instruction bearing upon this subject was asked and refused. And yet this was the clear duty of counsel, if they would make such a point in this court. This is a rule as old as the existence of this court, to say nothing of other courts. If further instructions are not asked, if there is no objection taken at the time to those given because of indefiniteness, this court ought- not, and should not, except in a case of. manifest injustice, to interfere. No such case is made here, and hence I am clearly of the opinion that the judgment should be affirmed.
Upon the point here noticed this -court has held this language: Where an instruction is given, not erroneous, but which does not as fully state the law as it might, if a party fails to ask a desired qualification, he cannot after-wards complain. Ault v. Sloan, 4 Iowa, 508; Miller v. Bryan, 3 Id., 58. And, again: “If the court’s charge is not sufficiently explicit, the attorney should ask more direct instructions. McCausland v. Cresap, 3 G. Greene, 161; *29and see Mears v. Garretson; 2 Id., 316; Coutch & Kinsman v. Barton, Mor., 354. “ If, upon any proposition involved, all of the law was not stated, this cannot avail the defendant, if that which was given was correct.” State of Iowa v. Tweedy, 11 Iowa, 360.
’This rule, thus clearly enunciated, I deem most just and reasonable. To depart from it' in every case of apparent hardship, or when I think 'Counsel may not have been as active in the presentation of the real points of their case as its correct determination would seem to demand, is no part of my duty. For their failure they have, doubtless, good and sufficient reasons. Having tried their case on their own basis, voluntarily taken, the consequences thereof are with them, and not with me or the court. And hence I cannot say in the case before us but that counsel may, from a knowledge of all the facts, have wisely preferred to place their defense upon other grounds. If so, I might not say they were wrong, and that another opportunity should be given to try the case more “ carefully and intelligently.”
I think the judgment should be affirmed.