84 Iowa 641 | Iowa | 1892
I. The only issues submitted to the jury were as to the alleged negligence of the defendant
Reasonable care upon the part of the deceased is an essential element of the plaintiff’s cause of action, without which she cannot recover. The presence or absence of such care may be shown by inference from the facts and circumstances proven, or by direct evidence. Under familiar rules of the law as announced in repeated decisions of this court, if there was no evidence showing care upon the part of the deceased, or if the evidence shows without conflict that the deceased, was guilty of negligence contributing to his death, the court should have directed a verdict for the defendant. If there was a conflict in the evidence, then 'the -question was propeiiy for the jury. If the facts and circumstances proven are of such nature that reasonable persons, unaffected by bias or prejudice, might disagree as to the inference or conclusion to be drawn therefrom, there may be said to be a conflict. For the cases on. this subject, see McClain’s Digest, under the head of “Practice, Directing the Verdict.”
We think the evidence not only fails to show that the exercise of care on the part of deceased may be inferred from the facts and circumstances proven, but that it shows affirmatively, and without conflict, that he was guilty of negligence directly contributing to cause his death. He was bound to exercise the care that an ordinarily careful, prudent person would have exercised under the same circumstances. The circumstances are, that on the evening of the eighth day of November, 1889, at about fifteen or twenty minutes after five o’clock, the deceased was walking westward on the north side of Tenth avenue, in the city of Clinton, and when crossing one of the defendant’s tracks,
It is argued that he was not negligent in not seeing the cars, because of the darkness and smoke. Four witnesses who saw the accident, and who were in no better position to observe than he, agreed in saying that they saw the cars approaching him when some eighty feet or more away. Mrs. Curtis, who was walking in the same direction, and about ten feet in the rear of Mr. Tierney, saw the cars when the first car came on Tenth avenue, some eighty feet from where Mr. Tierney was run over. Mr. Taylor, who came out of the switch house and walked in the same direction, and within fifteen feet of Mr. Tierney, saw the cars coming towards him. He says: “It was light enough
II. The appellant’s motion for a new trial was upon the grounds, among many others, that the ver-
■ .“If you find by a preponderance of evidence that the deceased, before stepping upon the track in front of the moving cars, saw or could have seen them approaching, by merely looking, then he was negligent, and your verdict will be for the defendant.” We have seen that the evidence not only failed to show care on the part of deceased, but shows affirmatively, without conflict, and beyond any reasonable question, that by looking he could have seen the cars in time to avoid the danger, and that he failed to look. This, according, to the instructions which the jury were bound to follow, was negligence such as to defeat the plaintiff’s right to recover. We are mindful of the rule that this court will not interfere with the decision of the court below in refusing a new trial on account of the insufficiency of the evidence where there is a conflict, and of the presumptions that are so properly indulged in favor of the rulings of the lower court. Where, however, there is an absence of testimony to an essential element of recovery, and where, as in this case, the contrary is proven without conflict, and the verdict is therefore contrary to the evidence and instructions, the duty of this court is to reverse. The principles of law governing'in such cases as this are so familiar and often repeatedfrin the decisions that we have not deemed it necessary to notice the numerous cases cited by counsel, nor to cite any of the many supporting the principles of law upon which our conclusions rest.
III. The appellant complains of the ninth paragraph of the charge, wherein the court instructed the jury to
For the reasons already stated, we reach the conclusion that the judgment of the district court must be BEVEESED.