76 Iowa 370 | Iowa | 1888
— On the eleventh day of October, 1884, the decedent was killed by falling from a bridge constructed by defendant over the Des Moines river at Lehigh. The bridge was a little over three hundred feet long, and was divided into two spans of equal length. These rested on two abutments, and a stone pier built to a height of about twenty-seven feet from the bottom of the river. Wheel-guards, made of timber about six inches square, and raised two or three inches from the floor, were placed on each side of the bridge. Guard-rails were fastened to the superstructure of the spans at a height of about three feet from the floor, excepting at the spaces between the spans. These spaces were about eight inches wide at the floor of the bridge, and nearly six feet wide at a height of three feet. The bridge furnished the chief, if not the only, means of communication between the two portions of the town of Lehigh, one of which was on the east, and the other on the west, side of' the river. It was much used
the open space between the spans, and that it was about five inches from the floor of the bridge ; that there was a mark on one of the boots of deceased, made by this spike,- and that it was probable that decedent had been tripped by striking his foot against the spike, and thrown headlong through the open space over the top of the pier to the rocks below. Plaintiff contends that the accident occurred in that manner. But defendant is not charged with negligence by reason of the spike, nor is it shown to be chargeable with notice of it. If it existed as claimed by plaintiff, decedent certainly had as much knowledge of it as did defendant, and should have exercised ordinary care at least to avoid it. Achtenhagen, Adm’r, v. City of Watertown, 18 Wis. 331.
tend to show that decedent was not using
due care when he stumbled against the bridge before he reached the opening, yet there is no evidence to show negligence when he reached it; that the fact that the letter was found at the foot of the pier, folded, shows that he was not reading it at the time of the accident, and that it was competent for. the jury to give weight to those natural instincts of men which lead them to avoid injury, in considering the question of contributory negligence. The case of Kendall v. City of Albia, 73 Iowa, 241, is cited by appellee. In that case the person injured slipped on a sidewalk just before reaching a defect of which he had knowledge, and immediately afterwards he stepped
Y. We have spoken of the absence of the rail between the spans as a defect. It is proper to say that defendant does not concede that it was one, and whether it was or not was a question of fact. Other questions discussed by counsel are not likely to arise on another trial. For the error of the court in refusing to take the case from the jury its.judgment is
Reversed.