33 Iowa 52 | Iowa | 1871
IV. It is claimed by appellant that the seventh pai’agraph of the charge of the court is incomplete and that it misled the jury. It is as follows : “ If you find from the evidence that defendant was guilty of negligence contributing to the accident, you willrinquire whether the deceased was, also, guilty of negligence or a want of ordinary care under the circumstances. In considering the question of negligence, on the part of Macy, you will have regard to all the circumstances of the case, whether or not he knew the condition of the spout mentioned by the witnesses, and, if so, whether he could have avoided the spout by stooping, or change of position, and if he knew the condi
1. In that case the court refused, when specifically requested by the defendant, to instruct the jury, that to entitle the plaintiff to recover she must prove that her intestate was not guilty of negligence which contributed to the injury. No such specific request appears to have been made in this ease.
2. In this case the. court instructed the jury that to entitle the plaintiff to recover, the jury must be satisfied, by a preponderance of evidence, that Sidney S. Macy was, at the time of the accident, exercising ordinary care and prudence to save himself from injury. No such instruction was given in that ease. An instruction the same in effect, and almost identical in language, with the one refused in that case, was given in this. The case, therefore, is no authority for the position assumed.
We have thus examined all the errors insisted upon in appellant’s argument, and find nothing in the record demanding a reversal of the cause.
Affirmed.