Gamble v. Mullin

• Decision Date: 09 March 1888
• Parties: GAMBLE v. MULLIN ET AL.
• Court: Iowa Supreme Court

74 Iowa 99

36 N.W. 909

GAMBLE

v.MULLIN ET AL.

Supreme Court of Iowa.

March 9, 1888.

Appeal from circuit court, Henry county; W. J. JEFFRIES, Judge.

Plaintiff, W. C. Gamble, seeks to recover damages for the death of a mare alleged to have been caused by negligence and want of skill on the part of defendants Washington Mullin and others. The case was tried to a jury, and a judgment rendered in favor of plaintiff on the verdict. The defendants appeal.Woolson & Babb, for appellants.

L. G. & L. A. Palmer, for appellee.

ROBINSON, J.

The plaintiff claims that he caused a mare to be served by a stallion kept by defendants, and that in consequence of negligence and want of skill on the part of the defendant's groom, an injury to the mare resulted, from the effects of which she died. The defendants deny that any injury was caused by want of care and skill on their part, and aver that if the mare sustained any injury from the service in question, the plaintiff caused the same or contributed thereto.

1. Defendants complain that the court failed to instruct the jury properly in regard to the issue of contributory negligence. The charge of the court stated a part of the issues, but failed to inform the jury that plaintiff was charged with having caused or contributed to the injury and damage sustained. That this was a material issue in the case cannot be denied. It was therefore error in this court to omit reference to this when stating the issues to the jury. Owen v. Owen, 22 Iowa, 274;State v. Brainard, 25 Iowa, 578;Potter v. Railway Co., 46 Iowa, 402;Hill v. Aultman, 68 Iowa, 632, 27 N. W. Rep. 788. The jury were told that if they believed “that the injury was caused by carelessness and negligence of the defendants in charge of the stallion owned by defendants, and that the plaintiff did not by any negligent act contribute to the injury of the mare,” their verdict should be for the plaintiff. But they are also told in at least two paragraphs of the charge, without qualification, that the plaintiff is entitled to recover if the injury was the result of carelessness or negligence on the part of defendant. It is true that in the paragraph of the charge first referred to the jury were told that the plaintiff could recover in the case stated if he had not contributed to the injury, but it is not stated in any part of the charge that contributory negligence on the part of plaintiff would prevent his recovery. In the third paragraph of the charge the jury are told that the burden of proving negligence rests upon the party alleging it. We do not understand this to be correct, as applied to plaintiff in this case. It was incumbent upon plaintiff to prove himself free from negligence, notwithstanding the fact that negligence on his part was stated in the answer. As bearing upon these questions see Price v. Mahoney, 24 Iowa, 584;Muldowney v. Railroad Co., 32 Iowa, 178, 180;Rusch v. City of Davenport, 6 Iowa, 451;Donaldson v. Railroad Co., 18 Iowa, 289;Greenleaf v. Railroad Co., 29 Iowa, 46;Baird v. Morford, Id. 536; Reynolds v. Hindman, 32 Iowa, 148;Patterson v. Railroad Co., 38 Iowa, 279;Murphy v. Railway Co., 45 Iowa, 663;Bonce v....