Dalton v. Chicago, Rock Island & Pacific Railway Co.

Deemer, J.

1 This is a second appeal. The opinion-on the first will be found in 104 Iowa, 27, where enough of the facts are stated to show the basis of the first assignment of error. On the second trial the case went to a jury, and the court instructed in one paragraph of the charge as follows: “In the absence of direct evidence of the conduct of deceased upon approaching the track of defendant’s railway, the law presumes, from the natural instinct of persons to avoid danger, that he exercised ordinary-care and prudence, until the contrary appears, but the presumption thus created applies only when there is no direct .evidence; nor will it be permitted to control if, from the whole evidence, it appears that the decedent, in approaching the defendant’s track in the exercise of ordinary care and prudence, could, by stopping, looking, and listening, have avoided the collision with defendant’s locomotive.” This instruction is complained of. Conceding, for the purpose of the case, that it is erroneous, yet, as plaintiff requested the court to give tlie following, among other instructions: “And you are therefore instructed that in the absence of direct evidence of the conduct of decedent, the law presumes, from the natural instincts of persons to avoid danger, that decedent was in the exercise of ordinary care, until the contrary appears; and you are to consider this presumption, in connection with all the facts and circumstances disclosed by the evidence, in determining whether deceased was in the exercise of ordinary care in approaching the crossing where the collision occurred” — which, in effect, announces the same rule as that given by the court, there was no error of which plaintiff may complain.

2 II. The eleventh paragraph of the charge reads as follows: “If it appears from the evidence that James E. Dalton was asleep when driving on Linn street to defendant’s tracks, such fact, if shown by the evidence, would constitute negligence on the part of the said Dalton as to prevent recovery.” This is said to be erroneous, for the reason that no distinction is made between voluntary, and involuntary slumber. As applied to the facts, the instruction was not erroneous; for there was no evidence tending to show that intestate’s condition was not self-imposed. So far as shown, his condition was due to his own voluntary antecedent conduct.

3 III.' Witnesses were permitted to testify, over plaintiff’s objections, to isolated instances when plaintiff’s intestate was found asleep in his buggy. This evidence was admitted on the theory, we suppose, that it would tend to show he was asleep at the time he was struck by the train, or perhaps to show his habit in this respect. Such evidence was clearly inadmissible. Rarely, if ever, may previous isolated instances be shown, to prove a condition existing at the particular time in question. Evidence of this kind tenders collateral issues that the other party is not prepared or expected to meet, and is directed to points not directly in issue. Moreover, the circumstances surrounding these instances may not have been the. same as those surrounding the main fact in dispute. . We are not to be understood, as holding that the habits of one whose conduct is 'in question may not be shown in certain cases, but such habits are not to be proven by evidence that he previously did the same thing. Baker v. Irish, 172 Pa. 528 (33 Atl. Rep. 558); Thompson v. Bowie, 4 Wall. 463 (18 L. Ed. 423); Carr v. Railroad Co., 163 Mass. 360 (40 N. E. Rep. 185); Eppendorf v. Railroad Co., 69 N. Y. 195 (25 Am. Rep. 171); Langworthy v. Green Township, 88 Mich. 207 (50 N. W. Rep. 130); Hudson v. Railroad Co., 59 Iowa, 583; 1 Greenleaf, Evidence, section 52; Kennedy v. Spring, 160 Mass. 203 (35 N. E. Rep. 779); Grenno v. Roark, 8 Kan. App. 390 (56 Pac. Rep. 329). The cases relied on by appellee, Railroad Co. v. Bailey, 145 Ill. 159 (33 N. E. Rep. 1089, and Railway Co. v. Clark, 108 Ill. 113, are not in1 point. In each case the evidence adduced and held competent related to the habits of the deceased, and in neither were there eyewitnesses of the main transaction. For the error pointed out, the judgment must'be again reversed.