Opinion

Holmes v. Gross

  • 250 Iowa 238
  • 93 N.W.2d 714
  • 1958 Iowa Sup. LEXIS 415
Court
Supreme Court of Iowa
Filed
Dec 16, 1958
Status
Published
Author
Thompson
On the bench
Peterson, Garfield, Bliss, Larson, Linnan, Oliver, Wennerstrum, Thompson, Hays
Cited by
24 cases

holding inadvisable the use of "that mongrel expression" in jury instructions, noting that it is "an equivocal connective, being neither positively conjunctive nor positively disjunctive" (citation and internal quotation marks omitted)

How later courts described this case

  • holding inadvisable the use of "that mongrel expression" in jury instructions, noting that it is "an equivocal connective, being neither positively conjunctive nor positively disjunctive" (citation and internal quotation marks omitted)
  • “that mongrel expression ... an equivocal connective, being neither positively conjunctive nor positively disjunctive”

Written by the judges who cited it.

The opinion

Thompson, J.

(dissenting) — I am unable to concur in Division II of the majority opinion. I am not convinced that one upon whom rests the burden of proof to. show freedom from contributory negligence carries it by evidence that he opened a closed door, with no. knowledge of what was. on the other side, and plunged forward into total darkness. He made no. inquiry as to the location of the toilet he was seeking; the door was not *253 marked and he should at least have proceeded with caution, if he chose to blunder about in unknown territory.'

I also see no materiality in the discussion in Division IY of the discretion of the court in granting a new trial. This for the reason the court did not purport to exercise its discretion, but placed its ruling on what it thought to be errors in instructions. Error there may have been; but if the defendant was entitled to a directed verdict because of plaintiff’s failure to show freedom from contributory negligence, it was not prejudicial.

Hays, J., concurs in this dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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