plaintiff was able to show by direct evidence what care he excrcised. The case is different from Way v. Railway Co., above cited." In Whitsett v. Railroad Co., 67 Iowa, 150, the court approves the last case, and distinguishes it from the Way Case by pointing out that in the latter death had resulted from the injury, and it was material to determine just what deceased was doing at the instant of injury, and that there was no direct testimony from which that fact could be determined. The court says: "But, when the facts of the transaction are proven by direct testimony, the question whether the party acted negligently or with care is to be determined from these facts. Plaintiff testified that he, in the night-time, and when the train was in motion, jumped or stepped from the top of the box car into a narrow space between the end of the tool chest and the side of the tender, and the question was whether this was a reg ligent or careful act. It is manifest that the consideration that men do not ordinarily expose themselves to dangers or death can have no weight in determining that question." In Reynolds v. City of Keokuk, 72 Iowa, 371, the jury were instructed that "the natural instinct which leads all rational persons to avoid injury to their persons as far as possible is an element of evidence proper for the consideration of the jury, with all the outstanding circumstances introduced as evidence on the question whether the plaintiff was or was not, at the time of her injur exercising ordinary care and prudence." And the court held this instruction to have been erroneous in that case, as it appeared that the injured person was a witness in her own behalf, saying that "where the person injured is living, and does or can testify to the facts and circumstances, and in what manner the injury was received, then there is no reason why the inference arising from the instinct of self-preservation should be indulged." In Hopkinson v. Knapp & Spauld ing Co., 92 Iowa, 328, the court says that "direct and posiVOL 113 Ia-9

tive evidence that the injured person, who is deceased, did not by his own negligence contribute to the injury, is not required," and "where such evidence cannot be obtained it is proper for the jury to consider the instincts of men, which naturally lead them to avoid danger as evidence of due care on the part of the person injured." In Baker v. Railroad Co., 95 Iowa, 163, the court holds that the inference which might otherwise have been drawn from the instinet of selfpreservation was overcome by the evidence indicating that if deceased had been exercising due care he would not have been injured; the accident having resulted while he was walking along the track. In Spaulding v. Railroad Co., 98 Iowa, 205, it is held that the jury might in an action for injuries causing death, for the purpose of determining whether deceased was negligent, "give due weight to the instincts and presumptions which naturally lead men to avoid injury and preserve their own lives," and that "it is sufficient, if it be the reasonable inference from the facts proven, that the decedent at the time of the accident was in the line of his duty, and exercising proper care." In Salyers v. Monroe, 104 Iowa, 74, which was an action to recover for injuries received by plaintiff, the jury were instructed to consider the natural instinct of man to guard himself against danger and preserve himself from injury, in determining whether plaintiff was guilty of contributory negligence. And the court said: "It is settled that such an instruction may be given where the care exercised by a person at the time of an accident which caused his death is in question, and direct evidence as to such care used cannot be had. But when there is such evidence the instinct of self-preservation cannot be given any weight."

These extracts from the leading cases in this state in which this question has been considered, are sufficient to indicate that it has been fully settled, that in the absence of any direct evidence whatever, the instinct of self-preservation may be considered, and will constitute a sufficient basis for

the inference of want of contributory negligence, but that, where there is direct evidence as to whether or not the injured party was negligent, then the inference is entitled to but little, if any, weight. We suppose that the idea involved in the latter proposition is that the direct evidence as to what took place is of higher character than the mere inference to be drawn from the instinct of self-preservation; and surely it must be conceded that in such a case the inference is entitled to but small consideration, if any. But the instruction given by the court in the case we are now considering was to the effect that in view of the instinct of self-preservation a presumption arises that the injured. person was careful, which presumption will prevail unless overcome by evidence satisfying the jury that the injured person was negligent. This statement of the law, if it were correct, would entirely revolutionize the doctrine, well established in this state, that the plaintiff has the burden of proving freedom from contributory negligence. If a presumption of due care is to be entertained, then the burden of proof would in practically every case be upon the defendant to show that the plaintiff was negligent. The mere statement of this proposition is sufficient to show that it is erroneous. The court was, no doubt, misled by the ambiguous use of the term "presumption" which is found in some of the cases. Frequently that word is used as indicating merely an inference which may be drawn from certain facts, and where it has been used in the previous decisions of this court in this connection it must be so interpreted. See, for instance, the language of the Baker Case, above, where previous cases are cited as holding that from the conduct of the injured person, who was engaged in the line of his employment, "aided by a presumption that arises from a natural disposition to avoid injury, the fact of diligence could well be found." But in that case it was held that the evidence of the circumstances overcame the inference based on the instinct of self-preservation. So, in the case of Dalton v.

Railway Co., 104 Iowa, 26, which was an action for injuries resulting in the death of the person injured, who was struck by a train while crossing defendant's track, it was said that: "It is a recognized rule of human conduct that persons in their sober senses naturally and instinctively seek to avoid danger. Therefore it must be presumed, until the contrary appears, that the deceased, prompted by this natural instinct, did exercise care in approaching and going upon the crossing," and that "whether the circumstances are such as to overcome the presumption that deceased, prompted by the instinct of self-preservation, did exercise the care required of him, was a question for the jury." It is evident that what is meant here is simply that the inference to be drawn from the instinct of self-preservation was entitled to some weight in connection with the inference to be drawn from the circumstances under which the accident occurred, and that the weight of the whole evidence was a matter for the jury. So, in Crawford v. Railway Co., 109 Iowa, 433, it is remarked that, as the person injured lost his life in the collision complained of, the presumption that he exercised due care must prevail; and it is said, “That such a presumption is proper and must be given weight is conceded, but it cannot prevail against evidence which shows that he could not have exercised due care." The use of the word "presumption" as a substitute for "inference" is also illustrated by the cases of Cameron v. Railway Co., 8 N. D. 124 (77 N. W. Rep., 1016), and Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. Rep., 270), upon which appellee relies. In the present case the inference to be drawn from the instinct of self-preservation could properly be considered by the jury, and we would not, therefore, be justified in sustaining the contention of defendant that there was no evidence of want of contributory negligence on the part of deceased. Burns v. Railroad Co., 69 Iowя, 450. But that is a very different thing from saying to the jury that a presumption arises therefrom, requiring evidence to the satisfaction of the jury to overcome it.

2

Appellant contends that the act of the deceased in not following the regular street crossing and sidewalk, but, instead, crossing the street in a diagonal direction, and stepping upon the sidewalk at the place of injury, which was not at a street crossing, was in itself such negligence as to defeat plaintiff's recovery; but we do not concur in this view. Certainly it is not negligence to pass from the sidewalk to the street, or from the street to the sidewalk, at a place other than that where there is a street crossing. Whether such act is negligent in a particular case must depend upon the circumstances, and must be a question for the jury.

Without discussing the evidence with a view to deter mining whether there is any evidence on which a verdict for plaintiff can properly be sustained, which would be improper, in view of a new trial, the case is, for the error above pointed out, REVERSED.

I. C. MCCONNELL, Appellant, v. C. L. POOR.

Sureties on Contractor's Bond: JUDGMENT AGAINST CONTRACTOR: When not res adjudicata. A judgment against a contractor for damages for breach of contract is not res adjudicata against 1 the surety on his bond, where the bond did not stipulate that the surety should be bound by such a judgment, and he was not a party or privy to the action, though he had notice thereof. CHANGES IN WORK CONTRACTED FOR: When defense to sureties.

Where a building contract provided that the value of changes or alterations, without additions or deductions, should be estimated according to the rate at which the work had been taken, 2 and the amount added to our deducted from the contract price, a change made wihout compensation, corresponding relatively to the contract price, which occasioned an additional expense exceeding the balance claimed, is a defense in an action on the contractor's bond.