# Holmes v. Gross

> Supreme Court of Iowa · December 16, 1958 · 250 Iowa 238

URL: https://www.frixlaw.com/law-library/cases/9725753

## Case

- **Full name:** C. I. Holmes, Appellee, v. Ruth Gross, Also Known as Ruth Maitis, Doing Business as Ruth’s Café, Appellant
- **Court:** Supreme Court of Iowa
- **Decided:** December 16, 1958
- **Citations:** 250 Iowa 238; 93 N.W.2d 714; 1958 Iowa Sup. LEXIS 415
- **Precedential status:** Published
- **Opinion:** Dissent by Thompson
- **Judges:** Peterson, Garfield, Bliss, Larson, Linnan, Oliver, Wennerstrum, Thompson, Hays
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9725753

## How later opinions describe it (automated extraction)

- 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)

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9725753. Public record. Not legal advice.