I am of the opinion that the appellant was entitled to the benefit of an inference, or presumption, arising from the instinct of self-preservation on the part of the decedent, and that this was sufficient to carry the question of his contributory negligence to the jury.
It is well settled that, where there are no eyewitnesses to an accident resulting in death, the inference arising from the instinct of self-preservation is sufficient to sustain the burden of proof, in the first instance, that the deceased was not guilty of contributory negligence. Dalton v. Chicago, R.I. P.R. Co.,104 Iowa 26; Christopherson v. Chicago, M. St. P.R. Co.,135 Iowa 409; Korab v. Chicago, R.I. P.R. Co., 149 Iowa 711; Wilsonv. Chicago, M. St. P.R. Co., 161 Iowa 191. In Platter v.Minneapolis St. L.R. Co., 162 Iowa 142, we said:
"Again, it is a rule of this court that the presumption of care arising from the instinct of self-preservation does not apply where there are eyewitnesses of the entire transaction, nor will it obtain if the physical facts and uncontradicted circumstances show that deceased could not have exercised the care required of him at the time of the accident."
In that case we held that it was a fair question for the jury whether the deceased was observed and his conduct noticed during all the time while he was within the danger zone.
In Gray v. Chicago, R.I. P.R. Co., 160 Iowa 1, we expressly approved the application of the doctrine, where there were intervals during which the conduct of deceased was not observed by any eyewitness. We said:
"They were not long intervals, yet we cannot say, as a matter of law, they were insufficient to do what reasonable care required at his hand by way of precaution for his own safety."
There was testimony that decedent was thoroughly familiar with the crossing, and that he was a careful driver with reference to the crossing. In Frederickson v. Iowa Cent. R. Co., 156 Iowa 26, we said of such evidence: *Page 714
"It may tend to aid the presumption of self-preservation that arises in such cases, because a person is more likely to do what he is in the habit of doing under the same conditions."
I think it should not be said, as a matter of law, that the interval while decedent traveled more than half the distance from Floyd River Road to the crossing, and during which his conduct was not observed by any eyewitness, was not sufficient, either in point of time or circumstance, for him to have exercised due and reasonable care for his own safety. Gray v. Chicago, R.I. P.R.Co., supra. It cannot be said that he did not look during that interval, nor, under the evidence as to the presence of smoke and dust to the north of the crossing, that, if he then looked, he must have seen the approaching train.
The jury might have found that the train was being operated at an excessive rate of speed, and without signaling its approach. It might have been found that, although decedent looked at any time during the interval when his conduct was not under observation, and when, under the authorities cited, a presumption exists that he exercised due care, no train was then observable, owing to the dust and smoke, for such a distance that he was justified in proceeding without again looking, and that he could have crossed in safety if the train had been running at a reasonable and proper speed. If it was so found, he was not required, as a matter of law, to look again when nearer the crossing. Wolfe v. Chicago G.W.R. Co., 166 Iowa 506. He was not bound to look or listen at any given point. Case v. ChicagoG.W.R. Co., 147 Iowa 747; Davitt v. Chicago G.W.R. Co., 164 Iowa 216.
Under the doctrine that a presumption or inference of the exercise of due care arises from the instinct of self-preservation, where there are no eyewitnesses of the conduct of a decedent during an interval when he might have fulfilled the duty of exercising such care for his own safety, I think the question of contributory negligence was for the jury, and that the judgment below should be reversed. *Page 715