56 Iowa 216 | Iowa | 1881
“5. The plaintiff would be justified in relying upon the presumption that the defendant had done its duty in repairing any injury, if a reasonable time after the injury to ■ the walk had elapsed before her use of it, and if she knew or ought to have known of the injury to the walk, she would be justified in using it, exercising such care, however, as seems reasonable. In view of her knowledge of its condition, and by the use of ordinary prudence, if. she could not discover the fact that the plank was dangerous till she was so close to it as to be unable to avoid it she was not negligent. In order to render her negligent, preventing a recovery, she must have gone into the danger voluntarily, assuming the risk by stepping into the danger there apparent. If she did not know, or have reason to know, that the plank was loose she would not be required to presume there was danger in going upon it.”
To this instruction the defendant excepted, and it is now insisted that no reversible error was committed in giving it.
Negligence is the failure to use ordinary care, and it may exist when -there-has been carelessness, forgetfulness or a want of attention.
Now as we understand the foregoing instruction the danger must have been apparent, and the plaintiff must have voluntarily assumed the risk of being injured before she can be said to have been negligent. We have some hesitation as to the meaning of the word voluntarily ,„in the connection in
Other objections are urged by the appellant, 'but none of them, we think, are well taken.
Reversed.