Rabe v. Sommerbeck

Granger, J. 1 I. The court instructed the jury that there was- no evidence of a willful act on the part of defendant, and hence the case wa® tried on the theory of damage resulting from negligence in- giving the medicine. The petition contains- no averment -as to a want of -negligence on the part of plaintiff, nor was. there evidence directed to that question. After verdict the defendant moved in arrest of judgment, because of a want of such- averment, and the court overruled the motion, and the ruling is assigned as error. By Code, section 2650, it is provided that, “if the facts stated in the petition do not entitle the -plaintiff to any relief whatever, advantage of it may he taken by motion in arrest of judgment, before judgment is ’entered.” If the plaintiff must show a want of negligence, to authorize a recovery, then, under the averments of the petition, plaintiff was entitled to no relief, [658] for but the single act of negligence is pleaded as a basis of recovery. It is not contended but that, in some actions for personal injury on the ground of negligence, the plaintiff must aver and prove a; want of negligence on his part contributing to the injury complained of, but it is¡ urged that the rule does not obtain in a case like this. We think that it dloes. Even though there may be exception® to the rule, we are clear that this is not one of -them. Certainly the general rule is that the plaintiff, in such a case, must show himself free from negligence contributing to the injury. Our Reports abound in cases wherein the rule is ■applied, and where there is language recognizing it, but they are generally railway or bridge cases, and those wherein machinery is used, that caused the injury, and no question is made as-to that class of cases. In Baird v. Morford, 29 Iowa, 531, the negligence complained of was in reducing a dislocated shoulder joint, and the rule of appellant’s contention in this case was in that case asked and refused in the 'district court, and it instructed that the party defending against the charge of negligence, if he relied on the negligence of the other as a defense, mnst prove it. The ruling was held to be erroneous, and it was said, “A party claiming to receiver for the negligent or unskillful acts of another must show him to be in the wrong, and also prove, if issue thereon is made, that no negligence of his own caused the injury.” That and the case at bar are much alike, as to the application of the rule in question. The opportunities for contributory negligence in the two cases' are much the same.' At the particular time of treatment, in each case, there seems to he but slight- opportunity for .such negligence, but still there is some. In both cases, after the treatment, there is a demand for reasonable care, and a want of it may become contributory negligence. Gwynn v. [659] Duffield, 66 Iowa, 708, is a case where the plaintiff applied for a particular drug, and the druggist negligently permitted the person to take from a jar, and swallow, belladonna. On the trial the court instructed as to the burden -of proof -on the question >of contributory negligence, and the opinion says that the instruction given might justify an inference that “the burden was not on the plaintiff to ¿how freedom- from contributory negligence,” and the instruction was- held erroneous. If, in. such a case, the rule was not applicable, — that is, if the rule of such a case is that the defendant must prove the negligence -of plaintiff, in order to avail himself of'it,— then, in that case, where the court was dealing with the question, of burden of proof only, it .could not properly have held that the burden was with1 the plaintiff. Speaking of the instruction! in that case, it is said: “Now, to justify a verdict against the plaintiff, it was not necessary, as the instruction implied1, that the jury should find affirmatively that the plaintiff was guilty of contributory negligence. They were bound toi render such a verdict if they simply failed to find that he was not thus guilty.” We think the authorities in thi-s state are conclusive of this question, and that .the count erred in not sustaining the motion to arrest the juld’gment. [660] 2 3 [659] ' II. The -defendant asked tine court to give the following instruction: “(2) If you find from the evidence tha-t croton oil was by defendant administered to plaintiff, in dangero-us quantity, as is -alleged, then- yon will consider whether or not it was the proximate cause of plaintiff’s sickness and injury, as alleged; and if you find that it was not the proximate cause thereof, or if the plaintiff was sick at the time of administering the croton oil, if any was administered, and the same [660] did not increase the sickness or pain, or the duration thereof, then you should find for the defendant.” It was refused. It seems to us that some such instruction 'should have been given, in view of the evidence. It appears that the plaintiff was sick when he went for the medicine, and whether or not it was the drug administered that caused the sickness and suffering that followed was a very important fact in the case. It is true, the instructions given only permit a recovery if the drug administered caused the injury; yet there is. nothing toi call the minds of the jury to the importance of distinguishing between these two facts, either of which might have been the cause of the suffering and condition complained of. We might not reverse, alone; because of this assignment, and we notice it especially because of a new ‘trial, if the petition shall be amended so as to present a cause of action. W,e may also say that the symptoms of the plaintiff after taking the dirug are proper, in determining its character, and aliso 'that, with the proper foundation, expert .evidence is competent for that purpose. If the facts having, support in the evidence are stated hypothetically to the .expert, it is proper for Mm to startle the conclusion whether or not croton oil, or any drug which is a subject of inquiry, would produce such isymptoms on results'. The judgment is reversed.