Hughes v. Chi., R. I. & P. Ry. Co.
Decision Date | 11 February 1911 |
Citation | 129 N.W. 956,150 Iowa 232 |
Court | Iowa Supreme Court |
Parties | HUGHES v. CHICAGO, R. I. & P. RY. CO. ET AL. |
OPINION TEXT STARTS HERE
Appeal from District Court, Jasper County; R. E. Willcockson, Judge.
Action at law to recover damages for personal injuries received by plaintiff while a passenger upon one of defendant's trains. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Reversed and remanded.Carroll Wright, J. L. Parrish, and C. O. McLain, for appellant.
Matthew Gering and Tripp & Tripp, for appellee.
Plaintiff claims that while a passenger on one of defendant's trains from Omaha, Neb., to Colfax, Iowa, and just before the train reached the station at Colfax, supposing that the station had been reached, he was attempting to alight and that while engaged in that act the train started with a jerk, throwing him under the wheels of a coach, resulting in the crushing of the left foot and the final amputation of the limb at a point six or eight inches below the knee. Defendant denied all allegations of negligence, and, in effect, averred that plaintiff was guilty of contributory negligence. Upon the issues joined the case was tried to a jury, resulting in a verdict for plaintiff in the sum of $15,000. This was reduced by the trial court to the sum of $10,000, and for that amount judgment was rendered against the defendant. This appeal presents but five propositions, and these are so involved as to resolve themselves to but three.
Defendant contended, and introduced testimony to show that at the time plaintiff received his injuries he was intoxicated, and it asked the court to instruct the jury as follows with reference to this matter: In lieu thereof the trial court gave the following: “You are instructed that the fact, if it be a fact, that just prior and at the time of the accident the plaintiff was under the influence of intoxicating liquors, and by reason thereof the plaintiff became careless and negligent, and you find such carelessness and negligence contributed to the plaintiff's own injury, and you so find, then the plaintiff cannot recover.”
It also gave the following, which should be considered in connection therewith:
“(5) ‘Negligence’ is the omission to do something which a reasonably prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonably prudent man would not do under similar or like circumstances.
(6) ‘Reasonable and ordinary care and diligence’ is such care and diligence as an ordinarily prudent man would exercise under similar or like circumstances.”
“(11) You are instructed that if you find from the evidence that the plaintiff on April 3, 1907, while a passenger on the cars and train of the defendant company, passed on and along the aisle and through the door of the car and onto the platform of the car on which he was a passenger, and hence down from steps of the said car, and while the train was to the plaintiff's knowledge still moving and in motion, or as a reasonably prudent man he could have discovered that the train was moving and in motion, he stepped off the car, and was injured substantially as he claims, and you so find, then in that event the plaintiff cannot recover, and your verdict should be for the defendant.”
Defendant contends that the court erred in denying defendant's request, and also committed error in giving instruction No. 15, hitherto quoted.
We shall first consider the instruction refused. This states, in so many words, that if plaintiff, when injured, was under the influence of intoxicating liquors, this in itself would constitute negligence, and that, if this intoxication in any degree contributed to his injury, plaintiff could not recover. It will be noted that the instruction so asked does not refer to the extent of the intoxication, but characterizes any degree as contributory negligence as a matter of law. We think this was too broad, and that the trial court correctly refused to give it. That one is intoxicated when injured does not of itself constitute contributory negligence, but it is a circumstance to be considered in bearing upon the question of his care. Weymire v. Wolfe, 52 Iowa, 533, 3 N. W. 541;Cramer v. City, 42 Iowa, 315;O'Keefe v. Railroad, 32 Iowa, 467;Sylvester v. Town, ...
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