154 Iowa 440 | Iowa | 1912
On June 16, 1910, at Davenport, Iowa, one Myron E. Ellett was struck and killed by a moving
The defense is to the effect that by the terms of the contract of insurance it was agreed the association should be under no liability for any benefit or indemnity on account of any accident occurring to ' said insured while in any degree under the influence of intoxicating liquors or narcotics, or which might happen on account or by reason or in consequence of the use thereof; nor should there be any liability for accident or injury to the insured brought about or occasioned by his voluntary exposure to obvious danger, and it is alleged by the defendant that the death of the insured resulted from and was caused by the fact that he was then under the influence of intoxicating liquors and by his voluntary exposure to open and obvious danger. These issues having been submitted to the jury, and a verdict returned thereon for the defendant, the judgment so rendered can not be disturbed on appeal except for insufficiency of evidence to sustain it, or for prejudicial error in the rulings of the trial court. It is the position
The station agent nearest the place testifies that he saw the men a little after three o’clock, and that they showed signs of intoxication. If we understand counsel correctly, they argue that the evidence that deceased drank six glasses of beer between eight o’clock in the morning and half past one in the afternoon, or that he was seen at three o’clock under the apparent influence of intoxicants, is insufficient to justify a finding that deceased was in such condition at the time of the accident. Even if this were all which the record discloses, we should hardly be justified in holding as a matter of law that the deceased was not or could not have been intoxicated when killed, and much less could we say that such finding by the jury has nothing in the -record to suppdrt it. Although Hull swears that six glasses of beer each was the limit of their libations on that unfortunate day, the jury were not bound to believe the literal truth of that statement. A party of men who begin the morning with visits to the saloons, and keep it up at intervals until afternoon, are not apt to carry in mind a very accurately itemized account of their drinks, and, if within one, two, or three hours after a circuit of that kind they go out and sit down or lie down or fall asleep on a railway track where trains are liable to be passing at any moment, the conclusion that they are intoxicated is so nearly irresistible that a finding to the contrary would border on the ludicrous.
It may be true, as counsel suggest, that these men, having befen without rest for a considerable period, were exhausted, and therefore the more readily gave way to the inclination to sleep, but that aspect- of the case was doubtless argued to the jury, and found by them insufficient to reconcile the act of the deceased with a condition of sobriety or make that act any the less a reckless and volun
VI. The court charged the jury in general terms upon the admissibility and use of circumstantial evidence, and of this appellant also complains. We do not understand counsel to contend that circumstantial evidence may not be introduced and considered, but rather that in the form given the rule stated is too much of a license to the jury to enter the field of speculation and conjecture. We can not further extend the opinion to set out the instructions as given upon this feature of the case, but will say they are in apparent accord with our precedents, and their application to the case can not well be doubted.
Other instructions also are challenged, but the points so raised where not governed by the conclusions we have already announced are not sustained by the record. On the whole record we see no reason to doubt that the ease was fairly tried without prejudicial error. It is too clear for sucessful question that there is ample support shown for a finding that the deceased came to his death as a result in part at least of his overindulgence in drink.
It would be . no kindness to. the orphaned child in whose behalf the suit is prosecuted to reverse the judgment below, and order a new trial, the result of which must in all human probability remain the same, nor does the appeal present any good ground upon which to justify such an order.
The judgment of the district court is affirmed.