Adams, J.
This case is before us upon a second appeal. The former decision is reported in 61 Iowa, 61. The facts as now presented are nearly the same as before. It is not important that we should undertake to point out specially the difference. We will say, in a general way, that the evidence shows that the defendants, H. P. Duffield and S. B. Duffield, were partners in business as apothecaries; that the plaintiff went into their store and called for the extract of dandelion; that S. B. Duffield undertook to put up for him a quantity of the drug called for; that in doing so he made a mistake, and put up the extract of
belladonna,
and delivered the same to the plaintiff'; that none of the drug, however, thus put up and delivered was swallowed by the plaintiff, and it is not claimed that any liability arose by reason of such sale and delivery; that the dose which produced the injury was not put up by the defendants, or either of them, nor was it delivered by the defendants, or either of them, to the plaintiff; that the plaintiff helped himself to the same from ajar standing upon the defendants’ counter; that the jar had been taken from the shelf by S. B. Duffield and placed ujion the counter, and the drug put up was taken from that jar, by him, under the mistaken supposition that it was the
extract of dandelion. So far the evidence is clear, and there is no ground for controversy. But it is not quite, clear whether S. B. Duffield said or did anything by reason of which he became responsible to the plaintiff for the character of the drug taken and swallowed by him, nor whether, if he did, the plaintiff was guilty of contributory negligence.
The plaintiff’s testimony in regard to the transaction in which the injury was received is as follows: After speaking of the drug which he ordered of S. B. Duffield, and which he paid him for,-lie said: “As he was doing it up, I said, ‘I feel bad now, and believe I will take a dose of that here,’ and reached out like I would take a dose out of the box, (being a small box in which he was putting up the drug.) He had got the lid on, and rather, I suppose, than take the lid off the box, he motioned towards the jar and said, ‘ Take it out of that.’ I had out my knife, and reached over and took out about as much as I had been in the habit of taking, and asked him if that was too much, and he smiled and said, £ No, that will not hurt you; you might take more than that and it would not hurt you.’ I took it on the point of my knife and put it in my mouth.”
The testimony of S. B. Duffield in relation to the transaction is in these words: “The first that I saw or knew of Gwynn’s taking any of it was when he was in the act of doing so. I have no recollection of his speaking to me about it. I gave him no permission to take it, and did not sanction it.”
The foregoing statement in respect to the evidence is sufficient to enable us to consider certain instructions given by the court, of which the defendants complain.
5. NJEGX,Xgicnce: action for: connegusence: proolfiní structions.
I. The first complaint made is that the jury was not properly charged in regard to the burden of proof respecting contributory negligence, and we have to say that it appears to us that the position is well taken. Possibly a jury might infer, from such an instruction as was given, that the burden was upon the plaintiff to prove that he was not guilty
of contributory negligence; but it seems hardly probable that they would. The plaintiff alleged, as was proper, that he was not guilty of contributory negligence, and the court instructed the jury that “the burden of proof rests upon the plaintiff to sustain his cause of action by a preponderance of evidence.” 'But is freedom from contributory negligence on the part of the plaintiff a part of his cause of action, or a mere condition of a right of recovery? and, if the former, is it probable that the jury so understood it? Manifestly they were left in great darkness upon this point. While we say this, it is possible that we might not feel justified in reversing upon this ground alone. The instruction is correct as far as it goes, and where such is the case the party who feels aggrieved should ask an instruction for the purpose of supplementing it, and should not, perhaps, ordinarily be heard to complain if he fails to do so.
. But the court gave an instruction from which an inference might be drawn that the burden was not on the plaintiff to show freedom from contributory negligence. The instruction is in these words: “If you find that the defendant failed in all respects to exercise the care required, yet if you further find that the injuries complained of were in any degree contributed to by the fault, want of care, or negligence of the plaintiff, then the plaintiff could not recover.” Now, to justify a verdict against the plaintiff, it was not necessary, as the instruction implied, that the jury should find affirmatively that the plaintiff was guilty of contributory 'negligence. They were bound to render such verdict if they simply failed to find that he was not thus guilty. Taking the two instructions together we think that they were calculated to mislead.
2._: of ESerVutbusiness: ' otner partner not liable.
II. The court gave an instruction in these words: “If the jury find from the evidence that the defendants were in the conduct of the business of apothecaries, and you further find that while in the line of such business the plaintiff. called for an extract of * - dandelion, and that m response thereto one or
the defendants negligently produced for the plaintiff tlie extract of belladonna, and that the same was a deadly poison, and that, through the said negligence of the defendants, the plaintiff was led to believe that the compound was the extract of dandelion, and that the plaintiff was induced to take a dose of the same, under such belief, without any fault or neglect upon his part, and as the direct cause of the taking of such poison the plaintiff became sick, to his injury, then you should find for the plaintiff.” The giving of this instruction is assigned as error. The court doubtless intended to be understood that if the jury found the facts mentioned in the instruction they should find for the plaintiff as against both defendants. Rut there is no pretense that the defendant IT. P. Duffield had anything to do with the transaction personally. If he became liable, his liability arose, not from his own act, but that of his partner. But, as we have seen, it was not the drug sold which produced the injury. It was what the plaintiff helped himself to from the jar while S. B. Duffield was doing up the package sold. According to the plaintiff’s testimony, it was what S. B. Duffield consented to his taking as a gift. Now, whatever duty of care S. B. Duffield may have owed him in such a transaction, the firm did not owe him any, unless giving away goods was a part of the firm business, and there is no evidence that it 'was. In our opinion the instruction cannot be sustained.
3. instbtkjpresent Sóa sules of the case.
III.
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Adams, J.
This case is before us upon a second appeal. The former decision is reported in 61 Iowa, 61. The facts as now presented are nearly the same as before. It is not important that we should undertake to point out specially the difference. We will say, in a general way, that the evidence shows that the defendants, H. P. Duffield and S. B. Duffield, were partners in business as apothecaries; that the plaintiff went into their store and called for the extract of dandelion; that S. B. Duffield undertook to put up for him a quantity of the drug called for; that in doing so he made a mistake, and put up the extract of
belladonna,
and delivered the same to the plaintiff'; that none of the drug, however, thus put up and delivered was swallowed by the plaintiff, and it is not claimed that any liability arose by reason of such sale and delivery; that the dose which produced the injury was not put up by the defendants, or either of them, nor was it delivered by the defendants, or either of them, to the plaintiff; that the plaintiff helped himself to the same from ajar standing upon the defendants’ counter; that the jar had been taken from the shelf by S. B. Duffield and placed ujion the counter, and the drug put up was taken from that jar, by him, under the mistaken supposition that it was the
extract of dandelion. So far the evidence is clear, and there is no ground for controversy. But it is not quite, clear whether S. B. Duffield said or did anything by reason of which he became responsible to the plaintiff for the character of the drug taken and swallowed by him, nor whether, if he did, the plaintiff was guilty of contributory negligence.
The plaintiff’s testimony in regard to the transaction in which the injury was received is as follows: After speaking of the drug which he ordered of S. B. Duffield, and which he paid him for,-lie said: “As he was doing it up, I said, ‘I feel bad now, and believe I will take a dose of that here,’ and reached out like I would take a dose out of the box, (being a small box in which he was putting up the drug.) He had got the lid on, and rather, I suppose, than take the lid off the box, he motioned towards the jar and said, ‘ Take it out of that.’ I had out my knife, and reached over and took out about as much as I had been in the habit of taking, and asked him if that was too much, and he smiled and said, £ No, that will not hurt you; you might take more than that and it would not hurt you.’ I took it on the point of my knife and put it in my mouth.”
The testimony of S. B. Duffield in relation to the transaction is in these words: “The first that I saw or knew of Gwynn’s taking any of it was when he was in the act of doing so. I have no recollection of his speaking to me about it. I gave him no permission to take it, and did not sanction it.”
The foregoing statement in respect to the evidence is sufficient to enable us to consider certain instructions given by the court, of which the defendants complain.
5. NJEGX,Xgicnce: action for: connegusence: proolfiní structions.
I. The first complaint made is that the jury was not properly charged in regard to the burden of proof respecting contributory negligence, and we have to say that it appears to us that the position is well taken. Possibly a jury might infer, from such an instruction as was given, that the burden was upon the plaintiff to prove that he was not guilty
of contributory negligence; but it seems hardly probable that they would. The plaintiff alleged, as was proper, that he was not guilty of contributory negligence, and the court instructed the jury that “the burden of proof rests upon the plaintiff to sustain his cause of action by a preponderance of evidence.” 'But is freedom from contributory negligence on the part of the plaintiff a part of his cause of action, or a mere condition of a right of recovery? and, if the former, is it probable that the jury so understood it? Manifestly they were left in great darkness upon this point. While we say this, it is possible that we might not feel justified in reversing upon this ground alone. The instruction is correct as far as it goes, and where such is the case the party who feels aggrieved should ask an instruction for the purpose of supplementing it, and should not, perhaps, ordinarily be heard to complain if he fails to do so.
. But the court gave an instruction from which an inference might be drawn that the burden was not on the plaintiff to show freedom from contributory negligence. The instruction is in these words: “If you find that the defendant failed in all respects to exercise the care required, yet if you further find that the injuries complained of were in any degree contributed to by the fault, want of care, or negligence of the plaintiff, then the plaintiff could not recover.” Now, to justify a verdict against the plaintiff, it was not necessary, as the instruction implied, that the jury should find affirmatively that the plaintiff was guilty of contributory 'negligence. They were bound to render such verdict if they simply failed to find that he was not thus guilty. Taking the two instructions together we think that they were calculated to mislead.
2._: of ESerVutbusiness: ' otner partner not liable.
II. The court gave an instruction in these words: “If the jury find from the evidence that the defendants were in the conduct of the business of apothecaries, and you further find that while in the line of such business the plaintiff. called for an extract of * - dandelion, and that m response thereto one or
the defendants negligently produced for the plaintiff tlie extract of belladonna, and that the same was a deadly poison, and that, through the said negligence of the defendants, the plaintiff was led to believe that the compound was the extract of dandelion, and that the plaintiff was induced to take a dose of the same, under such belief, without any fault or neglect upon his part, and as the direct cause of the taking of such poison the plaintiff became sick, to his injury, then you should find for the plaintiff.” The giving of this instruction is assigned as error. The court doubtless intended to be understood that if the jury found the facts mentioned in the instruction they should find for the plaintiff as against both defendants. Rut there is no pretense that the defendant IT. P. Duffield had anything to do with the transaction personally. If he became liable, his liability arose, not from his own act, but that of his partner. But, as we have seen, it was not the drug sold which produced the injury. It was what the plaintiff helped himself to from the jar while S. B. Duffield was doing up the package sold. According to the plaintiff’s testimony, it was what S. B. Duffield consented to his taking as a gift. Now, whatever duty of care S. B. Duffield may have owed him in such a transaction, the firm did not owe him any, unless giving away goods was a part of the firm business, and there is no evidence that it 'was. In our opinion the instruction cannot be sustained.
3. instbtkjpresent Sóa sules of the case.
III. The court gave an instruction in these words: “The mere taking of medicine from a jar which had been designated by the defendant as containing the drug called for, in the presence of the defendant, and with his knowledge, and not from the portion taken out by the defendant, would not, of itself, alone considered, exonerate the defendants from liability; but should it further appear that it was taken under such circumstances as to preclude the defendant from the exercise of his knowledge and discretion as a druggist, or under such circum
stances as would cause it to appear that the plaintiff acted upon his personal knowledge of the nature and quality of the drug, independent of the knowledge of the defendant, the defendants wojild not be liable.” The giving of this instruction is assigned as error.
i.
NEGLIGENCE Of owner of property: liability to trespasser.
The plaintiff testified, in effect, that he took the drug under the permission of S. B. Duffield. The latter denied that he gave such permission. If he is to be believed, the plaintiff was a trespasser; and, if a trespasser, he cannot be allowed to set up his own ignorance, and say that he relied upon S. B. Duffield’s knowledge, and was misled by his mistake. The instruction precluded the consideration of the defendants’ theory of the case, which was supported by evidence that the jury might have believed. That a person trespassing upon the property of another cannot recover for an injury sustained through the negligence of the owner in respect to such property, unless the negligence was wanton, or evinced an indifference to the safety of others, appears to us to be well settled.
Bush v.
Brainard, 1 Cow., 78;
Baltimore, etc., R. Co. v.
Schwindling, 101 Pa. St., 258;
Gillespie v. McGowan,
100 Id., 144;
Morrissey v. Eastern R.
Co., 126 Mass., 377;
Hargreaves v.
Deacon, 25 Mich., 1;
Severy v. Nickerson,
120 Mass., 306;
O'Keefe v. Chicago, R. I. &. P. R. Co.,
32 Iowa, 467;
Vanhorn v. Burlington, C. R. & N. R’y Co.,
63 Id., 67. In
Parker v. Portland Pub. Co.,
69 Me., 173, it was held that even a licensee could not recover. In our opinion the instruction cannot be sustained.
Reversed.