Case v. Chi., R. I. & P. R. R.
| Decision Date | 22 October 1884 |
| Citation | 21 N.W. 30,64 Iowa 762 |
| Parties | CASE v. CHICAGO, R. I. & P. R. R. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Polk circuit court.
Action for a personal injury. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.
*30Wright, Cummins & Wright, for appellant.
Baylies & Baylies, for appellee.
The injury occurred by reason of a car-door falling upon the plaintiff while he was standing upon a street in the city of Des Moines, near where the defendant's freight train containing the car was passing. As to how the door happened to fall there is no direct evidence whatever. It is manifest that the fastenings had become insufficient, and this probably occurred by reason of wear or strain or breakage, but further than that it is impossible to make any inference. The court gave an instruction in these words: “When the accident is one that ordinarily would not have happened had the defendant exercised ordinary care, proof of the accident and its attending circumstances raises a presumption of negligence on the part of the defendant, and the burden of proof is then cast upon it to rebut the presumption.” The giving of this instruction is assigned as error.
The instruction we think cannot be approved. The case, so far as we can see, is an ordinary one, and falls under the ordinary rule that where the defendant is charged with negligence in the use of a structure which has become defective, it is incumbent on the plaintiff to prove that the defect came to the knowledge of the defendant, or existed for such a length of time that knowledge should be presumed. Gandy v. C. & N. W. R. Co. 30 Iowa, 420;McCummons v. C. & N. W. R. Co. 33 Iowa, 187;Aylesworth v. C., R. I. & P. R. Co. 30 Iowa, 459;Perry v. Railroad Co. 36 Iowa, 102;Davis v. C., R. I. & P. R. Co. 40 Iowa, 292;McCormick v. C., R. I. & P. R. Co. 41 Iowa, 193;Losee v. Buchanan, 51 N. Y. 476;Garrison v. New York, 5 Bosw. 497; Hall v. Manchester, 40 N. H. 410;Hart v. Brooklyn, 36 Barb. 226; Thomp. Neg. 1227.
The plaintiff relies upon cases which either involved contractual relation or danger which was so imminent as to call for unremitting attention, as where a heavy body is raised or lowered over a public way. The danger of a car-door falling upon a by-stander was certainly not of this character, nor would it be practicable for a railroad company to give unremitting attention *31to the condition of every car owned by it or drawn into its service. The company may be allowed a little time to discover defects. Possibly the plaintiff would concede that this is so. His contention is, as we understand, that the instruction given is not...
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