McMillan v. B. & M. R. R.
Supreme Court of Iowa
Appeal from Jefferson District Court. The petition avers that George W. McMillan, the plaintiff’s intestate, being a boy about nine years of age, while walking upon defendant’s bridge was thrown therefrom by the defendant’s train, and caused to fall from the top of said bridge to the ground, a distance of about twenty feet, and thereby susr tained an injury from which he died on the following day.
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Appeal from Jefferson District Court. The petition avers that George W. McMillan, the plaintiff’s intestate, being a boy about nine years of age, while walking upon defendant’s bridge was thrown therefrom by the defendant’s train, and caused to fall from the top of said bridge to the ground, a distance of about twenty feet, and thereby susr tained an injury from which he died on the following day. The petition also avers that the accident, was caused by the negligence of the company, and that said George W. McMillan did not by his own negligence contribute thereto. The answer denies the…
1Opinion of the Court
Adams, J
I. The following instruction was asked by the plaintiff:
1. negligence: care required of infant. “ The burden of proof is on the plaintiff to show both the negligence of the defendant and the care of the deceased, that is, such care as a child of his age and discretion . would naturally use. Rut she is not bound to do more than raise by her proof a reasonable presumption of negligence. If the facts proved make it probable that the defendant neglected its duty it is for the jury to decide whether or not it did so.”
The court refused the instruction and instructed the jury as follows:
“ 1.…
2Cases cited1 opinion
- McMahon v. . MayorNew York Court of Appeals · 1865
3Cited by8 opinions
- Townley v. Chicago, MilwauKee & St. Paul Railway Co.Wisconsin Supreme Court · 1881
- Newbury ex rel. Newbury v. Getchel & Martin Lumber & Manufacturing Co.Supreme Court of Iowa · 1896
- State v. AthertonSupreme Court of Iowa · 1878
- Doggett ex rel. Doggett v. Chicago, Burlington & Quincy Railway Co.Supreme Court of Iowa · 1907
- State v. RiceSupreme Court of Iowa · 1881
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