| Iowa | Oct 10, 1878
Another question was asked in these words: “You have stated that the board was split. What was the appearance of the split as to being a recent one ? ” The witness was allowed to answer, against the objection of tho defendant, and said: “I don’t think I noticed any fresh split about the board, or any split about it that looked like it had been done recently.” He was also allowed to slate, against the objection of the defendant, as to the appearance of the nailing and renailing; that “the board had the appearance of being up a great many times so that it was split to pieces, punched full of holes, and in a condition that would not hold nails.” The defendant contends that this evidence was improperly admitted, because it related to the condition at a time subsequent to the accident, and did not tend to show what the condition was at the time of the accident.
To this, we think, it may be said that the mere fact that the examination was made subsequent to the accident would not render the evidence inadmissible. If the examination had been made the next morning after the accident no one would doubt that the condition, as then revealed, would have thrown
II. Evidence was introduced by the defendant showing that, upon the night of the accident and previous to it, the plaintiff was at a certain saloon near the place of the accident, and drank soda-water and wine three or four times. The plaintiff introduced evidence, against the objection of the defendant, showing that the saloon was licensed to sell wine and beer. The admission of the evidence is assigned as error. It is contended that the evidence was immaterial, and well calculated to influence the jury against the defendant. Had there been any evidence showing that the defendant was under the influence of intoxicating liquor we think the defendant’s posit'on would be well taken. The jury might naturally have concluded that if the accident occurred from the use of liquor which the defendant had granted a license'to sell, it should not be allowed to escape liability upon that ground. But there was not only no evidence showing that the plaintiff was under the influence of liquor, but there was evidence that he was not. The jury could not properly, then, have found that he was, and we must assume that they did not. The evidence, then, as to a license was without effect, and the defendant was not prejudiced by its admission.
Without holding that there might not be a case where th'e failure of a party to give his evidence would raise a presumption against him, it appears to us that such presumption could not be held to arise in this case. The evidence shows that the principal injury suffered by defendant was concussion of the brain. Medical testimony and the testimony of intimate acquaintances was introduced, showing that the jff&intiff’s mind was considerably impaired. One physician says that it is in an abnormal condition. On the other hand it is true one witness testified that he had an interview with the plaintiff, being sent for that purpose by the mayor of the defendant city, and that the .plaintiff conversed with him about as fully and intelligently as ordinary men. But this evidence fails entirely to show that the plaintiff had in mind the facts and circumstances pertaining to his injury. We snould not be justified in holding that the testimony of an insane or demented person, or one supposed to be such, should be taken to demonstrate his insanity or dementia, lest a presumption should arise against him from the failure to take it.
contribute to the injury. If such is the fact he must fail to recover. Carlin v. The C. R. I. & P. R. Co., 37 Iowa, 322. But it is sufficient if the circumstances shown reasonably justify an inference of care. It is shown that the plaintiff, a moment before the accident, was sober, and walking along the sidewalk in question. It was upon a dark night, and while so walking he fell off at a point where there was an offset, and where the ground beyond was several feet lower. If the barrier was down, and the night was too dark to enable him to discover the offset in the side
It is true that there is evidence showing that the barrier was up that very night a short time before the accident; but there was other evidence showing that persons were accustomed to lounge about this place, and lean and sit upon the ■board and break it down. Now it seems to us that the most reasonable theory of the accident is that the barrier had been broken down, and that the plaintiff simply walked off, or that he walked against it as a person might in the darkness of the night, and that the barrier gave away by reason of the imperfect condition of the fastenings.
Y. The plaintiff read in evidence the deposition of one Beck, who testified that he nailed up the board the evening of the accident. He said: “I saw the board off that evening, and told a boy to help me put it up. He came with some tenpenny nails. There was a strip, and the board was nailed to that. There were three tenpenny nails driven through the board into the strip; that w'as fastened with spikes. My attention was called to the injury the next morning. I went down to seethe condition of the board; it was pulled as if some one had knocked it off and broken the nails. • The nails were bent as if they had been forced off. We could sit on the board and it did not give any that evening. It was about four feet high
It is not shown that the defendant could not have introduced the same evidence. Besides, we do not think that the evidence was such that the defendant should complain of its withdrawal. Of course, if a sufficient barrier was erected that evening it would go far to show that the defendant was not guilty of negligence. But the evidence shows that the barrier was just high enough for persons to sit on, and that they had been accustomed to sit on it and break it down. If the board was put up in the manner in which the witness described, the most reasonable explanation of its being down is that enough persons sat on it to break it down. It is incredible, if the plaintiff was sober, as the evidence shows, that he should have beaten off the board himself and then precipitated himself from the sidewalk. Besides, that would be inconsistent with the testimony of the witness who bid him “good-bye,” supposing that he was within hearing, and receiving no answer inferred that he had fallen, as the fact was.
We think the judgment must be
ÁFPIRMED.