Slosson v. B., C. R. & N. R. Co. , 51 Iowa 294 ( 1879 )

Adams, J.

i. railroads: flils.genc®‘ — I. In the ease of Small v. The C., R. I. & P. R. Co., 50 Iowa, 338, it was held that it was competent for the defendant to aver and show that it was without fault. Under the ruling in that ease the plaintiff’s demurrer should have been overruled.

II. The court gave an instruction in these words: "If the plaintiff failed to plow around his stacks such failure would not constitute negligence unless cautious and prudent farmers generally plow around their stacks under like circumstances. ” The giving of this instruction is assigned as error. It is insisted that there is no evidence upon which it could be based. Whether the measure of care which the plaintiff should have exercised can be determined by the custom of others we need not consider. Such question is not presented. If it could be so determined there should be some evidence of custom, and we find none in this case.

Reversed.

Chief Justice Beck and Mr. Justice Day dissent upon the first point of this opinion.