89 Iowa 336 | Iowa | 1893
The controlling question presented on this appeal is whether the court erred in finding as stated above. While the court did not find specifically that the defendant was guilty of negligence as charged, we are warranted in assuming from the record, for the purposes of the question before us, that the defendant was negligent as charged. The appellant contends that, to defeat recovery, his negligence must have been the proximate cause of his injury; that, if the fact of his negligence could have been avoided by ordinary care on the part of the defendant, it was not the proximate cause of the injury. Appellant cites Whittaker’s Smith on Negligence, 373, and Shearman & Redfield on Negligence, section 61. That the contributory negligence to defeat recovery must be a proximate. cause of the injury, as distinguished from remote cause, is not questioned, but it is certainly clear that there may be more than one proximate cause. That which is relied upon in the authorities mentioned is said in connection with the discussion of the doctrine of comparative negligence and the burden of proof. It is well settled in this state that the doctrine of comparative negligence does not obtain, and that the burden is upon the plaintiff to show himself free from negligence directly contributing to cause the injury complained of. In McKelvy v. B., C. R. & N. R’y Co., this court, in speaking of contributory negligence, says: “Such negligence, strictly speaking, is negligence that operates with other negligence in producing a result.” It has been uniformly held by this court that where a party, by his own negligence or carelessness, has contributed to produce the injury complained of, he can not recover. Wright v. Ill. & Miss. Telegraph Co., 20 Iowa, 195; Haley v. Chi. & N. W. Railway Co., 21 Iowa, 15; Sherman v. Western Stage Co., 24 Iowa, 515. For other cases, see Digest. In Hamilton v. Des M. Valley
