Bell v. Inc. Town of Clarion

• Decision Date: 24 January 1901
• Citation: 113 Iowa 126,84 N.W. 962
• Parties: BELL v. INCORPORATED TOWN OF CLARION.
• Court: Iowa Supreme Court

113 Iowa 126

84 N.W. 962

BELL

v.INCORPORATED TOWN OF CLARION.

Supreme Court of Iowa.

Jan. 24, 1901.

Appeal from district court, Wright county; D. R. Hindman, Judge.

This action was commenced by Eliza Bell, now deceased; and the present plaintiff, her husband, has been substituted in her stead. It is for personal injuries sustained by the original plaintiff, and the claim in her behalf is that such injuries were received by reason of a defective sidewalk. Her subsequent death is claimed to have been the result of the injuries so received. There was a verdict for plaintiff, and from the judgment thereon the defendant appeals. Reversed.Nagle & Nagle, for appellant.

W. D. Evans and Peterson & Humphrey, for appellee.

McCLAIN, J.

The walk in question was constructed of three stringers, across which inch boards were nailed; the ends projecting beyond the outside stringers. Deceased had crossed the street at a point other than the street crossing, and in her attempt to get upon the walk she seems to have stepped on the end of one of the boards, which flew up and struck her in the face, inflicting the injuries complained of. The husband of deceased was with her at the time, but was walking ahead of her, and did not see the accident; but, on hearing the rattle of the board and an exclamation from his wife, he looked back, and saw her with her hand to her face; the board lying in front of her, wrong side up, and her face bleeding. No other witness was present at the time of the accident. The court instructed the jury with reference to the necessity of proving want of contributory negligence on the part of the deceased in connection with the accident, and, although these instructions are complained of, we do not find in them any material error. But the court said further to the jury: “(2) You are instructed that it is a recognized rule of human conduct that persons in their sober senses naturally and instinctively seek to avoid danger. The law, therefore, presumes, until the contrary appears, that the deceased, prompted by this natural instinct, did exercise care in approaching and stepping upon the sidewalk in question, where the injury occurred. But such presumption would be overcome by evidence that satisfied the minds of the jury that she was negligent.” The rule that an ordinary person, prompted by natural instincts, will use reasonable care to avoid injury, has long been recognized in this state, in connection with the rule that in an action for personal injuries plaintiff must show the exercise of reasonable care on his part, or, as it is usually expressed, the absence of contributory negligence. In Greenleaf v. Railroad Co., 29 Iowa, 14, it is said that it is “incumbent on plaintiff to show by direct testimony, or by presumptions arising from facts and circumstances, that the deceased was not negligent in connection with the injury,” and that it is always competent for the jury “to give due weight to those instincts which naturally lead men to avoid injury and preserve their lives,” and therefore that “these instincts, motives, and feelings may properly constitute evidence for the consideration of the jury.” In Way v. Railroad Co., 40 Iowa, 341, the jury were instructed that “plaintiff is not required to produce direct and positive testimony showing just what the deceased was doing at the instant that he received the injury causing his death, that the law requires only the highest proof of which the particular case is susceptible, and that the jury might take into consideration, in weighing the evidence, the hazardous nature of the work in which brakemen are employed, and give due weight to the instincts and presumptions which naturally lead men to avoid injury and preserve their own lives.” And the court, approving this statement of the law, says: “It is objected that this shifts upon defendant the burden of proving the contributory negligence of the deceased. We do not think the instruction vulnerable to this objection. The instincts prompting to the preservation of life are thrown into the scale as evidence, like the presumptions of sanity and innocence. But when the whole evidence is considered, these instincts included, the plaintiff cannot recover unless the preponderance of the evidence is in his favor.” In Dunlavy v. Railroad Co., 66 Iowa, 435, 23 N. W. 911, there was an instruction that “the jury may take into consideration, in weighing the evidence, the hazardous nature of the work in which the brakeman was employed, and give due weight to the instincts and presumptions which naturally lead men to avoid injury and preserve their own lives.” This instruction was held to be erroneous, the court saying: “The instinct of self-preservation, planted in all persons, may, in a proper case, be allowed some weight as raising an inference of care. Way v. Railway Co., 40 Iowa, 345. But, where the party who has the burden of proving care can show by direct evidence what care was exercised, he should, we think, show it by such evidence; and if the direct evidence shows care, or a want of it, there is no room for a mere inference. The plaintiff was able to show by direct evidence what care he exercised. The case is different from Way v. Railway Co., above cited.” In Whitsett v. Railroad Co., 67 Iowa, 150, 25 N. W. 104, the court approves the last case, and distinguishes it from the Way Case by pointing out that in the latter death had resulted from the injury, and it was material to determine just what deceased was doing at the instant of injury, and that there was no direct testimony from which that fact could be determined. The court says: “But, when the facts of the transaction are proven by direct testimony, the question whether the party acted negligently or with care is to be determined from those facts. Plaintiff testified that he, in the nighttime, and when the train was in...