Hunter v. Colfax Consol. Coal Co.

• Decision Date: 06 April 1916
• Docket Number: No. 30268.,30268.
• Citation: 157 N.W. 145,175 Iowa 245
• Parties: HUNTER v. COLFAX CONSOL. COAL CO.
• Court: Iowa Supreme Court

175 Iowa 245

157 N.W. 145

HUNTER

v.COLFAX CONSOL. COAL CO.

No. 30268.

Supreme Court of Iowa.

April 6, 1916.

Appeal from District Court, Jasper County; J. F. Talbott, Judge.

On Rehearing. Overruled.R. & F. G. Ryan and Stipp, Perry & Starzinger, all of Des Moines, for appellant.

John T. Clarkson, of Albia, for appellee.

Mabry & Hickenlooper, of Albia, amici curiæ.

SALINGER, J.

The opinion (154 N. W. 1037) is amended as follows: Strike out of the directing clause the words: “The cause is remanded to enable the appellant to make such defense assuming the burden of proof thereon and to plead contributory negligence by way of mitigation of damages if advised to do either. In all other respects the decision below is right, and the validity of the statute under consideration is hereby affirmed.” And substitute therefor as follows:

[1][2][3][4][5] In all other respects the decision below is right and the validity of the statute under consideration is hereby affirmed. It follows: (1) Defendant has the burden of proving that the injury to the plaintiff was not the direct result and did not grow out of the negligence of defendant, and that no negligence of defendant was the proximate cause of the injury; (2) that defendant has the burden of proving that plaintiff was willfully negligent, and thus negligent with intent to cause the injury, or that plaintiff's negligence was the result of his intoxication;(3) a defendant may plead other than said contributory negligence on part of plaintiff, but only as in mitigation of damages, in suits brought for injuries sustained after the taking effect of section 3593a of the Supplemental Supplement to the Code of 1915, and has the burden of proof on these; (4) any of said matters upon which he has the burden of proof defendant must plead as a defense, or as matter in mitigation, respectively; (5) on issue being joined by thus pleading, a jury trial must be had, unless trial by jury is waived.

[6] The Fourteenth Amendment is not violated by the announcing of said rule of pleading. The cause is remanded for proceeding therewith in all ways not inconsistent with this opinion.

The petitions for rehearing are each overruled.

The reporter will make this change in the opinion.

All concur.