Gwynn v. Duffield
| Decision Date | 23 September 1885 |
| Citation | 24 N.W. 523,66 Iowa 708 |
| Parties | GWYNN v. DUFFIELD AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Montgomery circuit court.
Action to recover for an injury alleged to have been sustained through the negligence of the defendants in giving the plaintiff a large and improper dose of belladonna. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendants appeal.
RECE, C. J., dissents.Hepburn & Thummel and James McCabe, for appellants, H. P. Duffield and others.
Clark & Parslow and C. S. Keenan, for appellee, G. M. Gwynn.
This case is before us upon a second appeal. The former decision is reported in 61 Iowa, 64;S. C. 15 N. W. Rep. 594. The facts as now presented are nearly the same as before. It is not important that we should undertake to point out specially the difference. We will say, in a general way, that the evidence shows that the defendants, H. P. Duffield and S. B. Duffield, were partners in business as apothecaries; that the plaintiff went into their store and called for the extract of dandelion; that S. B. Duffield undertook to put up for him a quantity of the drug called for; that in doing so he made a mistake, and put up the extract of belladonna, and delivered the same to the plaintiff; that none of the drug, however, thus put up and delivered was swallowed by the plaintiff, and it is not claimed any liability arose by reason of such sale and delivery; that the dose which produced the injury was not put up by the defendants, or either of them, nor was it delivered by the defendants, or either of them, to the plaintiff; that the plaintiff helped himself to the same from a jar standing upon the defendants' counter; that the jar had been taken from the shelf by S. B. Duffield and placed upon the counter, and the drug put up was taken from that jar, by him, under the mistaken supposition that it was the extract of dandelion. So far the evidence is clear, and there is no ground for controversy. But it is not quite clear whether S. B. Duffield said or did anything by reason of which he became responsible to the plaintiff for the character of the drug taken and swallowed by him, nor whether, if he did, the plaintiff was guilty of contributory negligence.
The plaintiff's testimony in regard to the transaction in which the injury was received is as follows: After speaking of the drug which he ordered of S. B. Duffield, and which he paid him for, he said:
The testimony of S. B. Duffield in relation to the transaction is in these words:
The foregoing statement in respect to the evidence is sufficient to enable us to consider certain instructions given by the court of which the defendants complain.
1. The first complaint made is that the jury was not properly charged in regard to the burden of proof respecting contributory negligence, and we have to say that it appears to us that the position is well taken. Possibly a jury might infer, from such an instruction as was given, that the burden was upon the plaintiff to prove that he was not guilty of contributory negligence; but it seems hardly probable that they would. The plaintiff alleged, as was proper, that he was not guilty of contributory negligence, and the court instructed the jury that “the burden of proof rests upon the plaintiff to sustain his cause of action by a preponderance of evidence.” But is freedom from contributory negligence on the part of the plaintiff a part of his cause of action, or a mere condition of a right of recovery; and, if the former, is it probable that the jury so understood it? Manifestly they were left in great darkness upon this point. While we say this, it is possible that we might not feel justified in reversing upon this ground alone. The instruction is correct as far as it goes, and where such is the case the party who feels aggrieved should ask an instruction for the purpose of supplementing it, and should not, perhaps, ordinarily be heard to complain if he fails to do so.
But the court gave an instruction from which an inference might be drawn that the burden was not on the plaintiff to show freedom from contributory negligence. The instruction is in these words: “If you find that the defendant failed in all respects to exercise the care required, yet you further find that the injuries complained of were in any degree contributed to by the fault, want of care, or negligence of the plaintiff, then the plaintiff could not recover.” Now, to justify the verdict against the plaintiff it was not necessary, as the instruction implied, that the jury should find affirmatively that the plaintiff was guilty of contributory negligence. They were bound to render such verdict if they simply failed to find that he was not thus guilty. Taking the two instructions together we think that they were calculated to mislead.
2. The court gave an instruction in these words: “If the jury find from the evidence that the defendants were in the conduct of the business of apothecaries, and you further find that while in the line of such business the plaintiff called for an extract of dandelion, and that in response thereto one of the defendants negligently produced for the plaintiff the extract of belladonna, and that the same was a deadly poison, and that through the said negligence of the defendants the plaintiff was led to believe that the compound was the extract of dandelion, and that the plaintiff was induced to take a dose of the same, under such belief, without any fault or neglect upon his part, and as the direct cause of the taking of such poison the plaintiff became sick, to his injury, then you should find for the plaintiff.” The giving of this instruction is assigned as error. The court doubtless intended to be understood that if the jury found the facts mentioned in the instruction they...
To continue reading
Request your trial