Dalton v. Chi., R. I. & P. Ry. Co.

• Decision Date: 25 May 1901
• Citation: 114 Iowa 257,86 N.W. 272
• Parties: DALTON v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

114 Iowa 257

86 N.W. 272

DALTON

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

May 25, 1901.

Appeal from district court, Louisa county; W. S. Withrow, Judge.

Action at law to recover damages for the death of James E. Dalton, due, as is alleged, to the negligence of the defendant. The case was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals. Reversed.I. M. Earle, for appellant.

Carroll Wright, C. A. Carpenter, and Robert Mather, for appellee.

DEEMER, J.

This is a second appeal. The opinion on the first will be found in 104 Iowa, 27, 73 N. W. 349, where enough of the facts are stated to show the basis of the first assignment of error. On the second trial the case went to a jury, and the court instructed in one paragraph of the charge as follows: “In the absence of direct evidence of the conduct of deceased upon approaching the track of defendant's railway, the law presumes, from the natural instinct of persons to avoid danger, that he exercised ordinary care and prudence, until the contrary appears, but the presumption thus created applies only when there is no direct evidence; nor will it be permitted to control if, from the whole evidence, it appears that the decedent, in approaching the defendant's track in the exercise of ordinary care and prudence, could, by stopping, looking, and listening, have avoided the collision with defendant's locomotive.” This instruction is complained of. Conceding, for the purpose of the case, that it is erroneous, yet, as plaintiff requested the court to give the following, among other instructions: “And you are therefore instructed that, in the absence of direct evidence of the conduct of decedent, the law presumes, from the natural instincts of persons to avoid danger, that decedent was in the exercise of ordinary care, until the contrary appears; and you are to consider this presumption, in connection with all the facts and circumstances disclosed by the evidence, in determining whether deceased was in the exercise of ordinary care in approaching the crossing where the collision occurred,”--which, in effect, announces the same rule as that given by the court, there was no error of which plaintiff may complain.

2. The eleventh paragraph of the charge reads as follows: “If it appears from the evidence that James E. Dalton was asleep when driving on Linn street to defendant's tracks, such fact, if shown by the evidence, would constitute negligence on the part of the said Dalton as to prevent recovery.” This is said to be erroneous, for the reason that no distinction is made between voluntary and involuntary slumber. As applied to the facts, the instruction was not erroneous; for there was no evidence tending to show that intestate's condition was not self-imposed. So far as shown, his condition...