Daily Democrat and news. [volume] (Davenport, Iowa) 1859-1864, 1862-06-16

1nciion htveep i6Dtrud one asked sni
)fu.ed q he "cSsra Of the Cat
Ror, .pe1 ling Of thu later, i declerd(
Tat 'seifry mt O. paragraph ahall b
deemed affirmed, unless excepted to DO.
fore the retiring Of the jury i exesPsed
TO, thst fact, and BY whom excepted g,
whether by splsistlff Or defendant, sh1R1
be stated BY the court on the marg,n.
against such instructions Or part Of the
charge" As to the former, however,
there 4 no such feqnirement.E The ne
cessity for this rule is we'll stated in
Jones Va Osgood, 2 Seld. 233. The rub
ing on the subject, ayaJohnsop, }. are
tending rather to increased astsictness,
and not At all 10 relaxation. They
have their foundation in just regard to
the fair administration Of justice, which
requires thst where % error 10 supposed
to have been committed, there should
be an opportunity to correct it at once
before il has had any consequences, and
does not permit the party 70 lie BY With
out making his objections, and take the
chances of success on the grounds on
which the Judge has placed the cause,
and then, if be fails to succeed, avail
himself of an objection, which, if it had
been stated, might have been removed"
And the rule here held applicable to
the ''charge' of the Court, applies to in
structions asked AMI given, to which
the other party objects. A general ex.
ception, if anv instruction is good, will
present no question tor review in this
Court. 1t is proper to state that the
case Of Eyser VS.. Weisgorbor, Iowa,
463, was decided under the old law,
and followed what We regarded the then
settled practice oftbe State. The revis-
ion, in our opinion, however, has given
the rule which accords with our views Of
justice and propriety, and as the ques-
ton has been made now, for the first
time, and argued BY able counsel. We
have decided it proper to settle it at
once, though the conclusion arrived
at, after carefully examining the instruc-
tons, does not render its determination
10 all its bearings and powers, strictly
necessary. As the Appellant claims
that there was error in refusing his in
structions, we may properly examine
them; and in considering them, it is
proper to premise that the Issue of facts
mainly. controverted and to which most
Of the instructions have reference, was
whether the posts for the lighting of the
lamps, on which this suit is brought,
we're public, in such sense as to render
the city liable. 1t is claimed that they
did not belong to the city-were not
city property-that the city did not
erect them, that they had not been ded-
icated to the public, for that there had
been only casual use for less than a
year, and that the city never had, by
any order, ordinance or resolution, de-
clared them public lamp posts.
1t was claimed by the Plaintiffs, on
the other hand, that to bring these lamps
ith,n the contract, it was not necessary
that the ownership should be in the
city that though not owned by the
city or public, they would still be "public
lamps" if they we're erected for the use
and benefit Of the public as contra-dis
tinguished from private individuals, and
we're, in fact, so used, aud that this was
especially trne, if they were erected
under an agreement with the city Tor
publicly under it's supervision, and have
been recognized and treated as Of this
character.
The claim or view taken by plaintiff
was substantially sustained by the court
and as consequence, defendants In
srructions were refused, and we think
very properly. Were these posts "pub
lic,' within the meaning Of the contract,
vas the fact to be determined. To
make them such, so far as to enab Il .
plaintiff to recover in this action, it was
not necessary that they should belong
to the city, any more than building
used for public purposes, but rented
from an individual, for the lighting Of
which by gas the city was sought to be
made liable. If they were intended and
understood by both parties to be public,
and we're accepted and recognized as
such by the City Council. it was suffi-
cient to entitle the plaintiffs to recover,
though they might not, according to .
technical abstract definition, come with.
in the meaning Of "publis lamp posts. :"
The notice of the 18th of June, can
legitmately have but little bearing uoon
this question, for the order to discon-
tinue is not placed upon the ground that
the posts are not "public," nor is such
a thing pretended nor intimatcd. On
the contrary, in the very resolutions
providing for the notice, they are styled
and recognized as '.public posts" With
out referring to the testimony in detail,
we state that the verdict was clearly
warranted, and that there was therefore
no error in overriding the motion for a
new trial and in arrest Of judgment.
Notwithstanding the confidence with
which this point appears to be urged BY
counsel, We do not zee how the jury
could have determined otherwise under
the evidence submitted, 80 far from Its
being case where the evidence was
strongly against the verdict, or mani
testify against it, as some Of the cases ex-
press it, or case where injustice has
been done, the weight Of evidence deci-
dedly preponderates in favor Of the find
ing, and We cannot disturb it.
Affirmed, WRlcHr, J.
/, Lewis Kinsey, Clerk Of the So.
preme Court Of the State Of Iowa, do
hereby certify that the foregoing Is =
tTuo copy Of the opinion in the case t.