Gwynn v. Duffield

Adams, J. — The injury was caused by reason of the plaintiffs taking an overdose of belladonna. He went into the defendants’ drug store and helped himself to what he supposed was a dose of the extract of dandelion; unfortunately the jar from which he helped himself contained belladonna, and what he took was an overdose of that drug. He avers that the defendants sold him the .dose in question for the extract of dandelion. . He also avers that they gave it to him for the extract of dandelion, and also that he took it under their direction, and under their representation that it was the extract of dandelion. He in fcroduced very little evidence, if any, tending to show that the defendants sold him the dose. But he showed circumstances from which the jury was justified, if they.believed the evidence, in finding that the defendants consented to his having the dose as a gift. In addition . to this, he showed beyond controversy that the defendants were guilty .of negligence. ' He showed, also, that belladonna is a j>oison, and that injury resulted to him from taking it. Now the law is clear that where a person, whether an apothecary or not, negligently gives another person poison, for the purpose of being swallowed by him, and the poison is swallowed by him and produces injury, the person negligently giving the poison is guilty of a tort, and is liable for the injury, unléss the injured person was also guilty of negligence which contributed to the injury. . The principal question presented, and the only one which we deem it necessary specifically to determine, is one which arises upon' an instruction given by the court on the subject of contributory negligence. The court gave the general rule in respect to the effect of contributory negligence on the part of the person injured, and so far there is no complaint by either party. But the court went further, and gave an exception to the rule, which may properly enough be given in .some cases, but for' which the defendant contended that there is in this case no warrant in the evidence. The exception given, stated in a general way, [66] • is the familiar one, 'that the plaintiff in an action for tort may recover, notwithstanding his own negligence contributed to the injury, if the defendants, after seeing the danger of injury, did not use ordinary care to avoid it. Morris v. C., B. & Q. R. Co., 45 Iowa, 29; Weymire v. Wolfe, 52 Iowa, 533. In determining whether the court erred in giving the instruction, we shall have occasion to notice the peculiar language used, and shall also have occasion to refer to the undisputed facts touching the question of negligence. The court instructed the jury that, if they found that the injuries complained of were contributed to by the plaintiff, he could not recover, “unless it was further shown by him that his fault, or neglect, or carelessness, or wrong was known to the defendants, and that the defendants could have prevented the injuries complained of by the exercise of reasonable care, after those facts had become known.” The language used, it wall be seen, is not clear. That the court intended to give the ordinary rule, as stated in the cases above cited, there is no doubt. But the use of the word “wrong,” in the connection in which it was used, leads, us to suspect that the court intended to add something to the ordinary rule. The idea to be expressed was the plaintiff’s danger, or, what is the same thing under the circumstances, the plaintiff’s negligence producing danger. If the court intended nothing more than th'.t, the words “fault, or neglect, or carelessness, or wrong” were rot happily chosen. We have to say, therefore, that it rather appears to us that, in the use of the word “wrong,” the court had in mind something which might be expressed by the word trespass, or possibly by the word theft. If so, then the court intended to instruct the jury that if the plaintiff was guilty of trespass or theft, and such trespass or theft became known to the defendants, and they did not, after such knowledge, use ordinary care to prevent the inj ury, they would be liable, notwithstanding the plaintiff’s negligence. But it will be seen at once that they.might have discovered the plaintiff’s wrong of that kind, without discovering that he was in any danger; and [67] unless they discovered his danger, there is no ground for the exception to the rule in respect to the effect of the plaintiff^ contributory negligence. But in no view can the instruction be sustained. The plaintiff predicated his right to recover upon the theory that he took the drug with the defendants’ consent, and by that he must stand or fall. Proceeding, then, upon that theory, let us inquire what are the undisputed facts respecting the subject of negligence. Taking the evidence of consent, as showing what the plaintiff claims that it does, the facts are as follows: The plaintiff went to the jar containing belladonna, and took out on the point of his knife what he thought was a dose of the extract of dandelion, and called the attention of one of the defendants to it, and asked if that was a proper dose, and the defendant, supposing that it was the extract of dandelion, told the plaintiff that the amount on his knife was a proper dose, and thereupon the plaintiff took it. The j ar, it appears, was properly labelled, and the plaintiff’s negligence, if. any, consisted in not discovering that the jar contained belladonna. There is no pretense that he could not read. The only excuse for him was, so far as we can discover, that the defendant, whom he consulted in regard to the size of the dose, had just made the same mistake. He had just taken from that jar, as the plaintiff had seen, a portion of its contents, to fill an order for the extract of dandelion, given by the plaintiff, and was doing up the package when the plaintiff proceeded to help himself to adose from the-jar as above set forth. There is not the slightest evidence that the defendant discovered the plaintiff’s danger. The jury, then, should have been instructed, without qualification, that, if the plaintiff was guilty of negligence contributing to the injury, he cannot recover. Reversed.