George v. K. & D. M. R.

Servers, J.

i. railroad: evidence ¡ practice.' Tbe accident wbieb caused, tbe death of plaintiff’s intestate is tbe same as in Jeffrey v. The K. & D. M. R’y Co., 51 Iowa, 439. Tbe evidence in both cases is substantially tbe same, and so are tbe legal questions involved in tbis appeal. The rules of tbe company admitted as evidence, and held to be erroneous in tbe Jeffrey case, were admitted in tbis under tbe same circumstances. It must, therefore, follow that error has been affirmatively shown unless tbe cases can be distinguished. Tbe burden in tbis respect is on the appellee, and his counsel ingeniously argue that because of certain special findings of tbe jury tbe error caused by tbe admission of tbe rules was not prejudicial.

There is no finding which affirmatively shows tbe error was not prejudicial. At most, therefore, it is a deduction from tbe special .findings, that tbe error in no manner affected tbe general verdict. Under such circumstances tbe claimed fact should clearly, or at least fairly, appear. Potter v. The C., R. I. & P. R. Co., 46 Iowa, 399.

Among other special findings there were tbe following:

“ 9. Does the evidence show that tbe injury was in consequence of tbe negligence of any of the employes of tbe company? Ans. Tes.

“10. If you say it was, then which of said employes was it? Ans. Conductor and engineer.

“11. In what particular act or acts did such negligence consist? Airs. In cutting tbe train while in motion, and suddenly starting ahead without due notice.”

The rules forbid flying or running switches, and in cases of doubt direct employes to take tbe safe course and run no risk. We incline to think that the j ary may have been influenced in finding that cutting the train was negligence, because of the rule forbidding flying switches. The rule must have been admitted on the ground that a flying switch ivas being made at the time the accident occurred. To make such a switch the train must be cut in two. Now the jury have found because the train was cut the conductor was guilty of negligence, as he ivas the j>erson who pulled the pin which connected the train. We cannot but conclude tlio evidence, or probability, is greater that the jury were influenced by the improper evidence, than that they were not. But whether this be so or not, it is entirely clear that it does not appear the illegal evidence was not prejudicial. When such evidence is admitted, which bears upon the issue and questions to be considered by the jury, prejudice must result therefrom unless it can be satisfactorily shown that such was not the case, and this should affirmatively, not negatively, appear. In other words the court must be able to say that it appears no prejudice has been caused by the erroneous ruling, whatever it may be. This we cannot say in this case, and, therefore, the result is the judgment below must be

Beyekhed.