38 Iowa 390 | Iowa | 1874
Among other instructions given, the court charged the jury that “ if the city dug or caused to be dug in one of its streets, whether open to public travel or not, an excavation which, if not protected by guards or barriers, would naturally and probably occasion injury to the stock of others running at large on -uninclosed lands in its vicinity, by falling therein, then the city is under obligations to suitably protect the same, and if it fail so to do it is liable for injuries to the stock of others occasioned thereby, and occurring without any negligence' of the owner thereof.”
The court further instructed the jury, in the eighth instruction, in substance that if the plaintiff was guilty of negligence in knowingly permitting his mare to run at large they should find for the defendant.
Whether these instructions do or do not state the law correctly as applied to the state of facts supposed, we will not stop' to discuss. They do, however, embody the doctrine, which is well settled, that the plaintiff can recover for injuries caused by the negligence of the defendant only when he himself has not been guilty of negligence contributing thereto. Under this doctrine and the uncontradicted facts of the case, the plaintiff is not entitled to recover, and the verdict of the jury should have been set aside. The plaintiff had equal, if not more, knowledge than the defendant of the excavation, and with such knowledge, he turned his mare loose in its vicinity. The conduct of each party must be tried by the same standard or test. If the defendant had reason to apprehend injury from the excavation, so had the plaintiff. If defendant was negligent in permitting the excavation to exist without barriers to keep stock from falling therein, the plaintiff- was negligent in turning his animal loose near it and knowing its condition. The same facts which establish the negligence of one show the contributory negligence of the other. Besides the mare was
. Reversed.