Patterson v. B. & M. R. R.

Day, J. — Defendant asked the court to instruct the jury: “ That to enable plaintiff to recover, the plaintiff must jirove to the satisfaction of the jury, or else it must otherwise appear in the evidence to the satisfaction of the jury, that deceased came to his death by negligence of the defendant whilst he, the deceased, was observing ordinary care on his part to avoid injury, or did not, by his own negligence, contribute to the injury.” The court refused this instruction, and defendant excepted, and assigned the 'ruling as error. The seventh instruction given by the court ends with the following sentence: “ If you find that the deceased, by his own negligence or want of proper care, caused or contributed to his death, then the plaintiff in this action cannot recover.” The eighth instruction, after setting forth the circumstances under which plaintiff might recover, closes as follows: “Unless you should also find from the evidence that the deceased, at the time of the accident, by his own carelessness [280] or want of proper care or caution, caused or contributed to his death.” The ninth instruction concludes as follows: “And if the evidence of the case fails to show that the deceased, at the time of the accident contributed to his death by his own negligence, or want of proper care, then plaintiff will be entitled to recover.” The difference between the instructions given, and that asked, is apparent at a glance. Under the instruction asked, the plaintiff must show, unless it otherwise appear in the evidence, that the deceased did not, by his own negligence, contribute to his injury. Under the instructions given, the plaintiff may recover, if the evidence fails to show that the deceased did contribute to the injury. batlboads : negligence1^ proof. ‘ In one case the burden of proof is upon the plaintiff. In the other, upon the defendant. Under the instructions given the exercise of ordinary care is presumed. The want of it must be proved as defense. We are aware that many courts recognize the rule given by the court below. See Shearman & Redfield on Negligence, § 43, and cases cited. But the rule contained in the instruction asked, has long been followed in this State. See Donaldson v. The M. & M. R’y Co., 18 Iowa, 280, (289); Greenleaf v. Illinois Central R’y Co., 29 Iowa, 14, (46); Baird v. Morford, 29 Iowa, 531, (536); Reynolds v. Hindman, 32 Iowa, 146, (149); Muldowney v. The Illinois Central R’y Co., 32 Iowa, 176, (178). The court erred in giving the instructions above alluded to, and in refusing to give that asked by the defendant. We discover no other material error in the case. For the error above considered the cause must be Reversed.