46 Iowa 231 | Iowa | 1877
I. The following instruction was asked by the plaintiff:
The court refused the instruction and instructed the jury as follows:
“ 1. To entitle the plaintiff to recover in this action she must establish by a preponderance of evidence the following facts: First, that Geo. W. McMillan is dead. Second, that he was injured by reason of the negligent acts of the defend
“ 3. Negligence may be said to consist in omitting to do that which a man of ordinary care and prudence under like circumstances would not omit, and in doing that which aman of like care and prudence under like circumstances would not do.”
“5. If you find from the evidence that said Geo. W. McMillan knowingly went upon the track of the defendant; that he had an unobstructed view of the railroad for one-fourth of a mile or more, so as to know of the approach of a train in time to clearly avoid an injury, and in the exercise of ordinary care might after seeing an approaching train have sought and found a place of safety, but failed to do so, and was injured by a train so approaching him, he was guilty of contributory negligence.”
It is claimed by the counsel for appellant that the court erred in refusing to instruct as asked and instructing as it did, because it made no distinction between the care required of adults and the care required of children.
Authorities are not wanting which ignore the distinction between the care required of adults and the care required of children; but the preponderance of authority now is that a distinction should be made. We are of the opinion that the instruction asked by the plaintiff should have been given, and that the third instruction given by the court should have been so drawn as to harmonize with it. McMahon v. The Mayor, etc., 33 N. Y., 642; Railroad Co. v. Gladmon, 15 Wallace, 401. In the case at bar the decedent was less than ten years of age, and while it may be that he did not exercise that care which might properly be required of a boy of that age, yet it was for the jury to determine whether he did or not, after having their attention called to the distinction which they should make between the care required of a child and the care required of an adult.
Some of the Justices have entertained some doubt on account of the condition of the record. It contains no evi
“The defendant has introduced the testimony of witnesses showing themselves to be competent as experts, who have testified before the jury, giving their opinion on the case put to them, whether the injury was received by the cars knocking the deceased off the bridge or by falling from one of the caps of the bridge.
“The jury are instructed that it is their duty to consider such evidence just like the testimony of any other witness, and not to discard it simply because it is the evidence of experts or professional witnesses, and if .the jury believe that the testimony of these experts and the evidence in the case sustains the correctness of the defendant’s theory that the injury was caused by falling oft' the bridge, the plaintiff cannot recover, provided such falling off was not caused by the negligent acts of the defendant.”
The appellant complains of this instruction, and says: “Proof that the deceased was killed by being shaken from the bridge, or that he fell from giddiness caused by the train, or jumped off to avoid being struck, the other material
Because the plaintiff averred that the deceased was forced off the bridge, we do not think it was necessary to prove that he was actually struck, and if the instruction required the jury to find that he was actually struck to enable her to recover, we think it is erroneous. But the court refused to instruct as asked by defendant, that if the injury was caused by falling off the bridge the plaintiff could not recover, and by way of modification, in substance instructed that she could not recover if the deceased fell off the bi’idge, and such falling off was not caused by the negligent acts of the defendant. Taking the instruction altogether we think it was correct.
■ Eor the error in refusing the instruction asked, the case must be
Be VERSED.