49 Iowa 469 | Iowa | 1878
That the burden of proof is upon the plaintiff to show, either from direct proof or from circumstances, that the injured party did not by his own negligence contribute to the injury, see the following authorities: Patterson v. The B. & M. R. R. Co., 38 Iowa, 279; Muldowney v. The Illinois Central R. Co., 32 Iowa, 176; Spencer v. Illinois Central R. Co., 29 Id., 55; Baird v. Morford, Id., 531; Reynolds v. Hindman, 32 Id., 146; Greenleaf v. Illinois Central R. Co., 29 Id., 14 (46); Hoben v. The B. & M. R. R. Co., 20 Id., 562.
That it is the duty of one coming upon a railroad track to employ the senses of seeing and hearing to ascertain whether
II. An exception to the rule that there can be no recovery .for ijn injury to which the injured party contributed by his negligence is that the defendant can not escape liability for an act done after it discovered the negligence, if it could then have avoided the injury by the exercise of reasonable care. Morris v. The C. B. & Q. R. Co., 45 Iowa, 29, and cases cited. There is no evidence in this case that the agents of the defendant in charge of the train knew that deceased was on the railway track. The jury disagreed upon the question whether the persons upon the train, by the exercise of ordinary care, could have seen the deceased in time to have avoided the injury. This case does not, therefore, fall within the exception above named.
IY. The defendant moved the court upon the whole record that the judgment be entered in favor of defendant. This motion was properly overruled. The court, upon the record disclosed, could only set aside the general verdict, and grant a new trial. Other questions have been argued which it is. not necessary to consider.
REVERSED.