Weymire v. Wolfe

i. neglig&r1defense? a — Whether, if Dunn had died solely from the use of the liquor, he would be deemed to have so far contributed to his death by his voluntary acts as to preclude a recovery, we need not determine. The petition states, and the evidence tended to show, that Dunn was expelled from the saloon at a late hour of the night, drunk and unconscious, and died by reason of exposure and cold. If it should be conceded that Dunn contributed to his death by drinking until he became drunk and unconscious, it would not follow that the plaintiff would not be entitled to recover. If a person lies down upon a railroad track in a state of helpless intoxication, the company will not be justified in running *535a train over him if it can be avoided in the exercise of reasonable care after the person is discovered in his exposed condition. If after that the company should be guilty of negligence whereby the exposed person should be injured, the negligence of the company would be deemed the proximate cause of the injury. Morris v. The C. B. & Q. R. Co., 45 Iowa, 29. So if the defendant negligently subjected Dunn to exposure to his injury, knowing that he was unconscious, or even helpless, the defendant cannot escape liability on account of Dunn’s negligence prior to the wrongful acts whereby Dunn was subjected to exposure, however great Dunn’s negligence may have been in allowing himself to become intoxicated.

We think that the instructions should not have been given.

Reversed.