Hughes v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 11 February 1911
• Citation: 129 N.W. 956,150 Iowa 232
• Parties: MICHAEL J. HUGHES, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY ET AL., Appellants
• Court: Iowa Supreme Court

129 N.W. 956

150 Iowa 232

MICHAEL J. HUGHES, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY ET AL., Appellants

Supreme Court of Iowa, Des Moines

February 11, 1911

Appeal from Jasper District Court.--HON. 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.

Reversed and remanded.

Carroll Wright, J. L. Parrish and C. O. McLain, for appellant.

Matthew Gering and Tripp & Tripp, for appellee.

OPINION

DEEMER, J.

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 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 into 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: "Before you can find for the plaintiff, you must not only find that the defendant was guilty of one or more of the acts of negligence charged in the petition and submitted to you by these instructions, and that such act or acts of negligence was the proximate cause of plaintiff's injury, but you must also find by a preponderance of the evidence that the plaintiff was free from any negligence on his own part which contributed to his injury. In this connection you are instructed that the fact if it be a fact, that the plaintiff at the time of the accident was under the influence of intoxicating liquors would constitute negligence on his part, and, if the same in any degree contributed to his injury your verdict must be for the defendant." 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 can not 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 can not recover, and your verdict should be for the defendant.

(13) If you find from the evidence introduced upon the trial of this case, guided by these instructions, that the plaintiff exercised ordinary care, taking into consideration all the facts and circumstances connected with the injury, as shown by the evidence, and you find that he has sustained any injury, then he was not at fault or negligent. If, however, he did not exercise such care and if, by reason of the want of such care, the injury of which he complains resulted to him, then he was guilty of contributory negligence.

Defendant contends that the court erred in denying defendant's request, and also committed error in giving instruction No. 15, hitherto quoted.

I. 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, 110 Iowa 256, 81 N.W. 455. One can not voluntarily incapacitate himself from the ability to exercise ordinary care, and then recover for an injury to which a want of ordinary care upon his part while so intoxicated proximately contributes. In other words, intoxication...