185 Iowa 264 | Iowa | 1918
1-a
There is further complaint that the court refused to let the defendant show what is deemed “proper insulation,” in electrical technology, and that it was in this connection other evidence referred to later was excluded. We have said, in a very recent case, that, where a ruling in the taking of testimony is complained of, it is in the power of the appellant to point to some spot in the record where that ruling is, and that, if this be not done, we will not go through the record to ascer
There was an exception to No. 8, charging that the first, paragraph seems to assume there was a. failure on part of defendant to properly insulate its wires. The instruction declares that, if it is found from the evidence that the wire which caused the death of decedent was placed on the transmission wire of defendant by someone other than decedent, and found that the defendant’s wires were not insulated, and found that decedent, while rightfully upon the highway, and in the exercise of ordinary care for his own safety, accidentally ran against the hanging wire, or inadvertently took hold of it, and was killed, and it is found that defendant’s failure to insulate these wires was the proximate cause of such death, defendant would be guilty of negligence, regardless of the length of time that the wire hung upon the transmission wire. We are unable to see what matter, material or otherwise, is so far assumed to be true.
We think so much of this instruction was erroneous. The appellee answers that the case turns on proximate cause, and not on contributory negligence; and that, at all events, as there were no eyewitnesses, therefore a presumption was raised that there was no contributory negligence; also, that the charge, as a whole, was correct, because the words objected to were but additions to a proper statement that want of ordinary care constitutes contributory negligence. It appears to us to be plain that neither meets the fault in this instruction.
Appellee asserts that State v. Louisville & N. R. Co., 177 Ind. 553 (96 N. E. 340), decides that the trial court in this case did not err in not defining what was proper insulation. We cannot so read the case. It involves an application of the rule that statutes shall not be held to be unconstitutional if any reasonable interpretation will avoid so holding. In applying this rule, it is held that a statute which makes it unlawful to use any locomotive which “is not properly equipped with an efficient automatic device for ringing the bell * * * such device to be at all times kept in proper working order,” is not void for indefiniteness on the ground that the words “proper,” “properly,” and “efficient” were relative terms, and imposed no standard for determining when a crime was committed under the act, “since the thing that was definitely required was a continuous ringing of the bell, and the words quoted might be eliminated as surplusage.”
We are unable to see what application Ingebretsen v. Minneapolis & St. L. R. Co., 176 Iowa 74, has to the point now under consideration. Its holding is that, where it is complained of an instruction that it did not tell the jury, in assessing damages, to limit itself to the present
“The instruction in the form given does not inhibit or negative a computation of damages on the basis of present worth, and we cannot assume that the jury did not, in fact, so reach its determination. Such, indeed, would naturally be the course of intelligent jurors in estimating a sum which would ‘fully and fairly compensate’ the plaintiff for the wrong done him.”
The judgment appealed from must be reversed. — Reversed and remanded.