Flesch v. Schlue

• Decision Date: 15 December 1922
• Docket Number: 34515
• Citation: 191 N.W. 63,194 Iowa 1200
• Parties: LEE M. FLESCH, Appellee, v. ERNEST SCHLUE, Appellant
• Court: Iowa Supreme Court

191 N.W. 63

194 Iowa 1200

LEE M. FLESCH, Appellee, v. ERNEST SCHLUE, Appellant

No. 34515

Supreme Court of Iowa, Des Moines

December 15, 1922

Appeal from Benton District Court.--B. F. CUMMINGS, Judge.

ACTION for damages resulting to plaintiff's automobile by reason of a collision with the horse of defendant, which was negligently permitted by the defendant to run at large upon the highway on the night of the accident. The defense was a general denial. There was a verdict and judgment for the plaintiff, and the defendant appeals.

Affirmed.

Nichols & Nichols, for appellant.

Tobin Tobin & Tobin, for appellee.

EVANS J. STEVENS, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

EVANS J.

I.

The accident in question happened on the evening of November 5, 1920, and upon the highway in front of defendant's premises. The time of it was after dark. The defendant's horse was at large upon the highway, and was not observable to the driver of the automobile until it came suddenly in front thereof. The disputed question in the case is whether the presence of the horse upon the highway resulted from a want of care on the part of the defendant or his employees. The son of the defendant testified that, shortly prior to the accident, he had put the horse in the barn and had tied him securely there and had closed all the doors, and that, therefore, he could not have escaped upon the highway except by the unauthorized act of some third person.

The principal complaint on this appeal is directed to Instruction 6 given by the trial court, and error is assigned thereon. This instruction contained the following direction:

"You are instructed that, if the defendant by himself or his agents or servants negligently allowed his horse to be upon the public highway in question at the time alleged, then the plaintiff is entitled to recover."

The error assigned at this point is that, by the foregoing, the trial court ignored the question of contributory negligence, and permitted the plaintiff to recover regardless of contributory negligence. Other proper instructions were given which did charge the jury that the burden was upon the plaintiff to prove freedom from contributory negligence. This, however, only put the respective instructions in conflict, and we have repeatedly held that conflicting instructions do not cure each other. We should be compelled to so declare in this case, were it not for the state of the record on the question of contributory negligence. There was no evidence offered or introduced that tended to show contributory negligence on the part of the driver of the automobile. The plaintiff did introduce direct evidence of freedom from contributory negligence. If, upon this state of the record, the jury had found the plaintiff guilty of contributory negligence, its finding could not stand. For the same reason, it must be held that the inadvertent error in this instruction was not prejudicial.

II. Instruction 6 contained also the following:

"Ordinary care by the defendant of his horse would be such care as an ordinarily prudent and careful farmer exercise under like circumstances. If the ordinary, careful, and prudent farmer puts his horse in a barn, and shuts and latches the doors thereto, or puts it in the yard, properly fenced, and properly closes and secures the gates, then that would be ordinary care."

Complaint is made of this part of the instruction, in that it submitted to the jury a hypothesis that had no support in the evidence. The evidence for the defendant was that the horse in question had been...