Gambar halaman

sideration of three dollars ($3.00) per year, payable every six months. (3) The party of the first part agrees to let the party of the second part use the front stairway as long as the party of the second part wants it. (a) The party of the second part agrees to pay the party of the first part three dollars per year for the use of the stairway between the Maxson and Stokes buildings. (b) The party of the second part agrees to clean step one-half time. (Signed] Mrs. W. G. Maxson. J. E. Stokes."

II. Defendant's contention is that, as her property is the homestead of herself and husband, said agreement is void, because her husband did not join in the execution thereof; and cites section 2974 of the Code, which is as follows: “No conveyance or incumbrance of or contract to convey or encumber the homestead, if the owner is married, is valid, unless the husband and wife join in the execution of the same joint instrument, whether the homestead is exclusively the subject of the contract or not, but such contracts may be enforced as to real estate other than the homestead at the option of the purchasor or incumbraneer.” The question is whether the right granted is an incumbrance on the defendant's homestead. The right granted is "the use of the front stairway

as long as the party of the second part wants it.” For this use the plaintiff agreed to pay three dollars a year, payable every six months, and "to clean steps one-half the time.” “An incumbrance is defined to be a right in a third person in the land in question, to the diminution of the value of the land, though consistent with the passing of the fee by the deed of conveyance." Barlow 1. McKinley, 24 Iowa, 70. “An easement is a liberty, privilege, or advantage in land without profit, existing distinet from the ownership of the soil; and because it is a permanent interest in another's land, with a right to enter at ail times and enjoy it, it must be founded upon an agreement by writing or upon prescription. But a license is an authority to do a particular act, or series of acts, upon an


other's land, without possessing any estate therein. Ii is founded in personal confidence, and is not assignable, nor within the statute of frauds. The distinction between a license and an easement is oftentimes very subtle and difficult to discern." Cook v. Railroad Co., 40 Iowa, 456. “Can a husband grant a right of way to a railroad over the homestead property unless the wife concurs in and signs the conveyance? As applied to the circumstances of this case, we answer this question also in the affirmative. The right of way is but an easement, and does not pass the title; and in this case it does not, and is not claimed to, affect the substantial enjoyment of the homestead as such. If the homestead was a single lot, and the right of way occupied it all, so as to destroy the homestead or defeat its occupancy as such the case would be very different.Railroad Co. v. Swinney, 38 Iowa, 184. See, also, Railway Co. v. UcWilliams, 71 Iowa, 165; Tarkness v. Burton, 39 Iowa, at page 104. These cases, we think, fully answer the defendant's contention. The right to use the stair and doorway does not pass title to the real estate, and does not affect the substantial enjoyment of the defendant's homestead as such. McGarven v. Myers, 60 Iowa, 257, cited by appellant, is not in point, as in that case the right to use the stairway was reserved in the deed, and provided for in a contract by which a building was to be erected and a stairway provided. In that case the right to the stairway was in diminution of the value of the land. Other cases cited we do not find to be in point. We conclude that the decree is correct, and it is therefore AFFIRMED.

113 126 $115 359

JAMES BELL, Administrator, v. INCORPORATED Towy OF

CLARION, Appellant.

113 126 116 88 117 459

Contributory Negligence: JURY QUESTION. Crossing a street in

a diagonal direction, at a place other than the regular crossing, 2 and stepping on a sidewalk at a place not a crossing, is not,

per se, negligence defeating a recovery for injury resulting from a defect in the sidewalk at that place.

11: 126 118 400 113 126 120 642 120 646

120 649 1120 650 120 651 120 652 1:22 464 1:2 493 -122 494 113 126 (125 657 112 126 127 619 113 1261 129 251

BURDEN OF PROOF OX: Instructions. An instruction that the law i presumes, until the contrary is shown, that a person injured,

prompted by a natural instinct to avoid danger, exercised care, which presumption will prevail unless overcome by evidence that he was negligent, is erroneous, as throwing the burden on defendant to show contributory negligence.

113 135

428 Appeal from Wright District Court.-IIox. D. R. Hind

MAN, Judge.

113 126 f138 567


113 126 e139696

[blocks in formation]

Tuis action was commenced by Eliza Bell, now deceased; and the present plaintiff, her husband, has been substituted in her stead. It is for personal injuries sustained by the original plaintiff, and the claim in her behalf is that such injuries were received by reason of a defective sidewalk. Her subsequent death is claimed to have been the result of the injuries so received. There was a verdivt for plaintiff, and from the judgment thereon the defendant appeals. -Reversed.

Nagle & Nagle for appellant.

W. D. Erans and Peterson & IIumphrey for appellee.

MCCLAIN, J.--The walk in question was constructed of three stringers, across which inch boards were nailed; the ends projecting beyond the outside stringers. Deceased had crossed the street at a point other than the street cross

ing, and in her attempt to get upon the walk she seems to. have stepped on the end of one of the boards, which flew up and struck her in the face, inflicting the injuries complained of. The husband of deceased was with her at the time, but was walking ahead of her, and did not see the accident; bui, on hearing the rattle of the board and an exclamation from his wife, he looked back, and saw her with her hand to her face, the board lying in front of her, wrong side up, and her face bleeding. No other witness was present at the time of the accident. The court instructed the jury with reference to the necessity of proving want of contributory negligence on the part of the deceased in connection with the accident, and, although these instructions are complained of, we do not find in them any material error. But the court said further to the jury: "(2) You are

You are instructed that it is a recognized rule of human conduct that

persons in their sober senses naturally and in1 stinctively seek to avoid danger. The law, therefore,

presumes, until the contrary appears, that the de ceased, prompted by this natural instinct, did exercise care in approaching and stepping upon the sidewalk in question, where the injury occurred. But such presumption would be overcome by evidence that satisfied the minds of the jury that she was negligent." The rule that an ordinary person, prompted by natural instincts, will use reasonable care to avoid injury, has long been recognized in this state, in connection with the rule that in an action for personal injuries plaintiff must show the exercise of reasonable care on his part, or, as it is usually expressed, the absence of contributory negligence. In Greenleaf v. Railroad Co., 29 Iowa, 14, it is said that it is “incumbent on plaintiff to show by direct testimony, or by presumptions arising from facts and circumstances, that the deceased was not negligent in connection with the injury,” and that it is always competent for the jury "to give due weight to those instincts which naturally lead men to avoid injury and preserve their lives,".

and therefore that "these instincts, motives, and feelings may properly constitute evidence for the consideration of the jury.” In Way v. Railroad Co., 40 Iowa, 341, the jury were instructed that "plaintiff is not required to produce direct and positive testimony showing just what the deceased was doing at the instant that he received the injury causing his death, that the law requires only the highest proof of which the particular case is susceptible, and that the jury might take into consideration, in weighing the evidence, the hazardous nature of the work in which brakemen are employed, and give due weight to the instincts and presumptions which naturally lead men to avoid injury and preserve their own lives.” And the court, approving this statement of the law, says: “It is objected that this shifts upon defendant the burden of proving the contributory neg. ligence of the deceased. We do not think the instruction vulnerable to this objection. The instincts prompting to the preservation of life are thrown into the scale as evidence, like the presumptions of sanity and innocence. But when the whole evidence is considered, these instincts included, the plaintiff cannot recover unless the preponderance of the evidence is in his favor.” In Dunlary v. Railroad Co., 66 Iowa, 435, there was an instruction that "the jury may take into consideration, in weighing the evidence, the hazardous nature of the work in which the brakeman was employed, and give due weight to the instincts and presumptions which naturally lead men to avoid injury and preserve their own lives." This instruction was held to be erroneous, the court saying: "The instinct of self-preservation, planted in all persons, may in a proper case, be allowed some weight as raising an inference of care. Way v. Railway Co., 40 Iowa, 345. But, where the party who has the burden of proving care can show by direct evidence what care was exercised, he should, we think, show it by such evidence; and if the direct evidence shows care, or a want of it, there is no room for a mere inference. The

« SebelumnyaLanjutkan »