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But if, under all the circumstances surround- | erickson v. Railroad Co., 135 N. W. 12; Gray ing him, he did exercise ordinary care, then v. Railroad Co., 143 Iowa, 268, 121 N. W. you cannot find that he was guilty of negli- 1097; Dalton v. Railroad Co., 104 Iowa, 26, gence." This too has sufficient support in 73 N. W. 349. the precedents: Bruggeman v. Railroad Co., 147 Iowa, 187, 123 N. W. 1007, Ann. Cas. 1912B, 876, and cases cited.

[9] 9. Closely related to the presumption of proper care on the part of the deceased due to the instinct of self-preservation as stated in the instruction given by the trial court is the cognate question of decedent's contributory negligence. The burden was upon plaintiff to show that deceased did not by any want of ordinary care on his part contribute to the injury which resulted in death.

[10] As there were no eyewitnesses of the transaction, the presumption of due care came to plaintiff's aid, and was sufficient to justify a finding in plaintiff's favor on this proposition, unless from the physical facts or the natural features of the locality it is apparent that deceased, had he exercised the degree of care required of him, could and would have avoided the collision. In other words, the presumption cannot stand against positive and uncontradicted proof showing that deceased must have been negligent, and that this negligence contributed to his injury. According to one of the latest decisions of this court, the rule is as follows: "The presumption is something more than a mere shadowy generality. In the absence of direct evidence, the presumption supplies its place, and, if the issue of contributory negligence is the only obstacle to recovery, it is sufficient to support a verdict for the plaintiff. True this presumption may be overfrom which the jury may fairly conclude that come by a showing of other circumstances deceased was not in fact exercising due care; but in the nature of things this counter showing can rarely be so overwhelming and conclusive as to make the question whether the presumption has been fairly overcome a matter of law. See, also, Bickel v. Railroad Co., 217 Pa. 456, 66 Atl. 756, 118 Am. St. Rep.

[8] 8. The defendant asked the following instruction: "(4) Because there was no eyewitness to the accident, and no person who observed plaintiff's conduct at and just prior to his death, there is an inference due to the instinct of the love of life or desire for self-preservation that the plaintiff was exercising care on his part at that time. This, however, is nothing more than an inference and is not to be given any weight as against the facts and surroundings that actually existed as shown in the evidence at and about the place and time of the accident; therefore, if you believe from the evidence that by reason of the lay of the ground as shown in the evidence, the nearness of the highway to the railway, the light from the train, the rumbling of the same as it approached the crossing, the signals given, if any, the said Earl Wilson could have discovered the approaching train by the exercise of ordinary care on his part, then the inference of due care on his part has been fully overcome and the plaintiff has failed to establish her case, and you should find for defendant." Instead of this, the court gave the following: "(10) Because there was no eyewitness to the accident, and no person who observed decedent's conduct at and just prior to his death, there is an inference due to the instinct of love of life, or the desire of self-preservation, that decedent was exercising care on his part at that time. This inference, however, is not conclusive. to be considered by you in connection with all the facts and circumstances shown upon the trial, and, considering it with all the facts and circumstances shown upon the trial, it is for you to say whether or not the said Earl P. Wilson used ordinary care at the time of the accident. If you believe from the evidence that by reason of the situation and character of the crossing, the character and operation of the train, the manner in which it approached the crossing, the noise made by it and the signals given, if any, the character of conveyance in which said Wilson was traveling and the manner in which he was traveling, and all other facts and circumstances shown in evidence, including the inference that he had a love of life, that the said Earl P. Wilson exercised ordinary care at and Just prior to the time he was struck by the train, then he was not guilty of neg-gency requiring any such exposure to danligence. But, if you believe he failed in any degree to exercise ordinary care, then he was guilty of negligence." The one given seems to have support in our cases hitherto decided, and there was no error in denying the one asked. Korab v. Railroad Co., 149 Iowa, 711, 128 N. W. 529, 41 L. R. A. (N. S.) 32; Fred

It is

926. *

Enough has been said to show

that, although it is not known what was the particular occasion leading the deceased into the place of danger, yet, so long as the mere act of his going between the cars is not necessarily an act of negligence, the presumption is that he was in the line of duty in so doing. The cases cited by appellee are not inconsistent with this conclusion. In Brown v. Railroad Co., 69 Iowa, 163 [28 N. W. 487], there was direct evidence by living witnesses of the material facts, and no presumption could be indulged in, and it was affirmatively found by the court that there was no 'emer

ger.' In Martensen v. Railroad Co., 60 Iowa, 705 [15 N. W. 569], all the circumstances of the accident were shown in evidence, and the court found that the act of the plaintiff 'was wholly unnecessary, and that he was performing no duty' to his employer in so doing. In Haggerty v. Railroad

Between the place

of accident and the overhead crossing to the westward there was a little stream, over which the railway ran and along this stream was considerable timber, which was in leaf at the time of the collision. After the horse was struck the train ran a hundred rods or more before it could be stopped, and neither the engineer nor the fireman saw the deceased or the horse or buggy. The train was running downgrade, and there was testimony tending to show that one traveling on the east and west public highway could not have seen the approaching train until it had emerged from behind the trees which bordered the stream, which we have mentioned. Again, something like 15 or 20 rods west of the crossing where the accident occurred

Co., 90 Iowa, 405, 57 N. W. 896, the evi- | crushed and destroyed. dence 'showed without conflict that the injured person was riding on the ladder without any reason for so doing.' So in all the precedents cited recovery was denied because of the undisputed showing that the parties injured or killed were acting 'without reason or excuse' (Dillon's Case, 118 Iowa, 645, 92 N. W. 855), or without 'having any duty there' (Baker's Case, 95 Iowa, 163, 63 N. W. 667), or for other sufficient reason which forbade the indulgence of any presumption of care on their part. To say as a matter of law that deceased was guilty of contributory negligence simply because he appears to have stepped between the cars, or to say that his administrator may not go to the jury in this case because of failure of proof to negative want of care in taking there was a knoll or rise in the grounds the position of danger, is to abolish altogether the presumption of which we have spoken. It is the very absence of all direct human testimony which calls into activity the presumption that the deceased did not risk his life recklessly or without reasonable cause. This presumption may be strengthened or weakened by other proven circumstances; but generally it is for the jury to say whether it has been overcome. The testimony to which counsel for appellee refer, which tends to show that before leaving the side track on the night in question the train was inspected and reported to be in good order, affords a legitimate, but not decisive, circumstance bearing on this question whether there was any occasion for deceased to go between the cars; but it is not of such conclusive character as makes the question of contributory negligence one of law." Korab v. Railroad, 149 Iowa, 711, 128 N. W. 529, 41 L. R. A. (N. S.) 32.

which interfered with one's sight of the train after he had crossed this knoll and gone down the grade while traveling to the eastward. Just before the track reached the crossing, it had to pass through a slight cut, and there was also a cut in the highway at about the same place. In reaching the crossing a traveler went downgrade from the hill or knoll hitherto described, and for a short distance before reaching the crossing his back would be to an oncoming train. The stream to which we have referred also crossed the public highway and along its banks at this place were trees which obstructed the vision of a traveler after he passed over the stream passing toward the east until he got to the knoll or hill. It was, as counsel for appellant say, 660 feet from the place where the railway crossed the stream to the place where the accident occurred, but because of the obstructions, which we have mentioned, a jury would have been justified in finding that the deceased could not have seen the train until it came from behind the trees, a distance of 660 feet, provided the deceased was at or near the crossing when he saw the train, if he did see it. Running at the rate of 50 miles per hour the train would have covered this distance in about nine seconds. But deceased was evidently not upon the crossing when the train emerged from behind the trees; and, had he looked and listened at a place where he might have seen

[11] Appellant very strongly insists that the testimony in this case clearly overcame the presumption, and that the verdict is without support in the testimony. This argument is based upon the premise that deceased had a clear and unobstructed view of the track upon which the train was approaching for more than 660 feet, and that had he stopped, looked, and listened, or looked and used his senses of sight or hearing, he must have known of the approach of the train in time to have avoided the collision. The main trou-a train approaching, it is doubtful if it would ble with this argument is that appellee disputes the premises, and avers that the jury might have found to the contrary.

In this connection it must be remembered that the jury was justified in finding that the train gave no warning of its approach to the crossing by blowing the whistle or sounding the bell; that it was running at a high rate of speed, and that it was an excursion train which made few stops, made up of an engine, a baggage car, four coaches, and a sleeper. It was also shown that the horse was thrown something like 90 feet eastward

have saved him from the accident. The noise of the train was manifestly somewhat screened, not only by the trees, but also by the fact that the crossing toward the west was an overhead one, and either the cut for the railway or the fill for the highway crossing would not only obscure the headlight of the engine, but drown the sound of the approaching train. Even if the deceased had stopped on top of the knoll, he would not have seen the train because of the rate of speed at which it was approaching.

In view of the entire record, as to obstruc

CONTRACT TO SECURE PURCHASER-PERFORMANCE-RIGHT TO COм

MISSIONS.

Where a broker has agreed to produce a purchaser who will buy on terms satisfactory to his principal, and he produces a purchaser with whom the principal enters into an enforceable contract, the broker if he has acted in good faith has earned his commissions, and in case the contract is not performed through no fault on his part is not bound to prove that the purchaser was ready, willing, and able to perform,

in order to recover commissions.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 75-81; Dec. Dig. § 54.*]

Appeal from District Court, Jefferson County; F. M. Hunter, Judge.

ure of the engineer, or fireman, to ring the [ 4. BROKERS (§_54*) bell, or sound the whistle, and the topography of the country, the further fact that neither the engineer nor the fireman saw the deceased, although the engine was running in such a manner that, if he had been in sight and deceased had been traveling along the highway, the headlight must have covered him, and the presumption arising from the instinct of self-preservation, we do not feel justified in saying as a matter of law that deceased was guilty of contributory negligence. The question was, as we think, one of fact for a jury, and the instructions correctly submitted this matter to it. 10. Lastly, it is contended that the instructions are inconsistent and conflicting. have read them with care, and find no such conflict as would justify a reversal. Indeed, we find nothing inconsistent in the instructions. At no time did the court depart from the allegations of negligence stated in the fourth instruction, which we have quoted. The second instruction does not make any he entered into an oral contract with the such departure. Indeed, the instructions seem to be reasonably clear and consistent. Finding no prejudicial error in the record, the judgment must be, and it is, affirmed.

We

KETCHAM v. AXELSON. (Supreme Court of Iowa. June 7, 1913.) 1. BROKERS (§ 60*) ENGAGEMENT TO PROCURE PURCHASER-PERFORMANCE RIGHT TO COMMISSIONS.

When a broker contracts to procure a purchaser for his principal, who will purchase on terms satisfactory to the latter, and produces a purchaser who is ready, able, and willing to purchase on such terms and with whom the principal enters into an enforceable contract, the broker has earned his commission, though the contract is afterwards canceled by the principal without the broker's consent.

Action to recover commission for sale of real estate. Opinion states the facts. Trial to a jury. At the conclusion of plaintiff's testimony, the court directed a verdict for the defendant. Plaintiff appeals. Reversed.

Ralph H. Munro, of Fairfield, for appellant. J. P. Starr, of Fairfield, for appellee.

GAYNOR, J. The plaintiff contends that

defendant by which the defendant agreed to pay the plaintiff the sum of $170 if the plaintiff would secure for him a party who would exchange property with the defendant at such figure as would be satisfactory to the defendant; that, if the plaintiff procured a purchaser for defendant's land for cash, on terms satisfactory to the defendant, the defendant would pay the plaintiff $340. Plaintiff claims that he secured a purchaser for the defendant's farm in the person of one J. D. Parsons, who entered into a written contract with the defendant for the purchase of said land, and subsequently purchased the land from the defendant, and had the title conveyed to the Burlington Building Company, of which the said Parsons was pres

ident. The defendant denies that he entered

[Ed. Note. For other cases, see Brokers,into a contract with the plaintiff as claimed; Cent. Dig. § 91; Dec. Dig. § 60.*]

2. BROKERS (§ 63*) ENGAGEMENT TO PROCURE PURCHASER-PERFORMANCE-RIGHT TO COMMISSIONS.

Where a broker employed to obtain a purchaser obtains one who is ready, able, and willing to buy, and enters into a contract for the purchase on terms satisfactory to the principal, though the contract contains a provision authorizing the principal to terminate the contract within a specified time, and the principal elects to exercise such option, the broker is nevertheless entitled to his commissions.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 79, 81, 94-96; Dec. Dig. § 63.*1 3. BROKERS (§ 61*)-RIGHT TO COMMISSIONS -CONDUCT OF PRINCIPAL.

The right of a broker to commissions is in no way affected by the conduct of his principal to which he has not assented subsequent to the execution of a contract of sale, so that, where an enforceable contract has been executed, the principal's inability to convey title by reason of which the contract is not performed does not release the principal from the obligation to pay the commissions.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 77, 78, 92, 93; Dec. Dig. § 61.*1

denies that plaintiff procured him a purchaser for said land. The case was tried to a jury, and at the conclusion of plaintiff's testimony the court, on the motion of the defendant, instructed the jury to return a verdict against the plaintiff in favor of the defendant. Judgment was thereupon entered upon the verdict, and from this judgment the plaintiff appeals. The only contention on the part of appellant is that the court erred in sustaining the motion and directing a verdict against him, and in dismissing plain

tiff's cause of action.

A proper determination of this case requires an examination of the entire evidence offered and received, and upon which the court acted in directing a verdict for the defendant.

It appears from the evidence that on September 15, 1909, defendant, by written contract, purchased from one I. T. and E. S. Pogue their farm of 3394 acres for the sum of $10,000, to be paid in the following

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

manner: $500 to be paid upon the execution, fendant that Parsons wanted to meet him, of the contract; a bankable note for $500 and he said, 'Yes; I have a telephone from payable March 4, 1910, without interest until him.' I asked him if he needed me, and he due; the remaining $9,000 to be paid as said, 'No,' he was going to meet them at the follows: Second party, defendant herein, to train. This was the day the contract was assume the mortgage on the land of $5,000, drawn up. I met the defendant either Sunpart purchase money; the remaining $4,000 day or Monday after the contract was drawn to be paid March 4, 1910, at which time the and signed. He told me he had signed the first party agreed to execute and deliver to contract. He told me it had a provision in the second party a good and sufficient war- it. He told me he called the contract off ranty deed. with the message, and at the same time told me he had closed another deal. Did not say who the deal was with. Did not tell me who the agents were although I asked him." Plaintiff further testified on crossexamination: "The contract between Parsons and defendant was finally signed on Saturday. I have no knowledge as to whether he ever attempted to cancel the contract, except what he told me, and I have no means of knowing whether he canceled it or not. I never agreed with the defendant to sell his farm, or to trade the farm. I only agreed to find him a man who would trade for it or buy it."

It appears that the purchase by the defendant of this property was made through the instrumentality of the plaintiff. Plaintiff testifies that when the defendant was negotiating for the purchase of this land he had a talk with the defendant, and the defendant told him to get the land for him, even if he had to cut his commission to do so. He said: "If you get the land for me, I will give you the sale of the farm exclusively until the 1st day of March, 1910, and will give you a good commission." Plaintiff testifies: That after the purchase of the farm by the defendant, and after this conversation had with the defendant, he went to Bur- It appears from the evidence that on the lington and looked around for a deal. Found 22d day of January the defendant and J. D. Mr. Parsons, who was ready to trade for Parsons entered into a contract in writing this farm. This was some time about the for the Pogue farm, which the plaintiff 1st of November, 1909. "After I had talked claims to have had as agent for the defendwith Parsons, I came up and submitted the ant, which reads as follows: "Articles of proposition to the defendant, and then the agreement, made this 22nd day of January defendant went to Burlington to look the in the year of our Lord one thousand nine proposition over. Then Mr. Parsons came up hundred and ten between John F. Axelson, and brought a man with him. The defendant party of the first part, and J. D. Parsons, and I and Parsons went down and looked party of the second part, witnesseth: That the farm over. Parsons made a written said party of the first part hereby covenants statement that he would trade so and so and agrees that if the party of the second with defendant, and that he would give him part shall first make the payments and the Burlington property, but Mr. Parsons perform the covenants hereinafter mentioned requested that the land be surveyed so that on his part to be made and performed he would know his exact lines, and refused (prompt performance of which payments and to proceed further in the deal until the lines covenants being a condition precedent, and were fixed. Said he wouldn't sign any con- time being the essence of said condition), the tract until the land was surveyed. After said party of the first part will convey and that we had the land surveyed. I went down assure to the party of the second part, in there with the surveyor. We were two days fee simple, clear of all encumbrances whatcompleting the survey. The surveyor figured ever, by a good and sufficient warranty deed, out three acres more than the defendant the following lot, piece or parcel of ground, claimed before, and then he wrote the pur- viz.: Three hundred thirty-nine and 4 acres chaser and proposed raising his price $500, in sections 28, 32 and 33 Cedar township, and then it ran along for some time, and was Jefferson county, Iowa, known as the Pogue finally settled in February, I think. On or land, with abstract showing merchantable about the 15th of November I had a further title. And the said party of the second part conversation with the plaintiff in Fisher's hereby covenants and agrees to pay the said office. He said then that if the deal was party of the first part the sum of twenty-two made, or he said, 'If you find a man to trade hundred fifty (2,250.00) dollars, and the for it, I will give you 50¢ an acre. If you find further consideration of a warranty deed and a man who will buy it, 1 will give you $1.00 an abstract showing merchantable title to propacre.' It was after this conversation that erty Nos. 305, 3062, and 308 and 310 we went down to Burlington and looked at Washington street, Burlington, Iowa, being the property. That is, the defendant and I. all the ground from the Elks Building west I think I paid the expenses on this trip. to the alley and from the north line of I also paid livery hire when Parsons, de- Washington street to the Grand Opera House fendant, and I went to look at defendant's property. Second party further agrees to farm. Before the contract was drawn up, loan first party $7500.00 for 3 years at 6 Mr. Parsons telephoned me to see the de- per cent. semiannual interest, such loan to

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defendants, and the Burlington Building
Company, defendants in cross-petition, that
all matters pending between the parties here-
to, plaintiffs, defendants, cross-petitioners,
and defendants to cross-petition, are hereby
settled and adjusted in full, and all claims
by and against all of us are to be dismissed
on their merits, and no claim shall be made
by any of us for any damages, on account
of any of the matters set forth in the peti-
tion and cross-bill. It is hereby stipulated
and agreed that the said J. D. Parsons shall
pay to said John F. Axelson the sum of
$2,700.00, dismiss his action and pay the
costs therein, taxed at $-
In consid-
eration of such payment, said John F. Axel-
son and wife hereby agree to dismiss their
cross-petition and withdraw their answer
filed in said cause, and do hereby release
to said Burlington Building Company any
and all claims in or to the lands described
in said action and said J. D. Parsons and
said John F. Axelson and wife herewith
specifically release each other from any
claim of any kind growing out of the con-
tract of sale executed between them, for the
lands described in said action; said sum of

gage at time of closing this deal. First Axelson and wife, I. T. Pogue and husband, party acknowledges receipt of $100.00, cash balance $2150.00 and deed to said Burlington property to be paid by second party on or before March 1, 1910, on delivery of said deed and abstract to said 3394 acres and to pay all taxes, assessments or impositions, that may be legally levied or imposed upon said land subsequently to the date hereof. And in case of the failure of the said party of the second part to make either of the payments of principal or interest, or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined on thirty (30) days written notice and the party of the second part shall forfeit all payments made by him on this contract. It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executor, administrators, and assigns of the respective parties. In witness whereof the parties to these presents have hereunto set their hands' the day and year first above written. It is understood and agreed that first party may cancel this agreement on or before one o'clock P. M. January 23, 1910, by sending second party | $2,700.00 to be paid within five days from notice by telegram to Burlington, Iowa, and returning said payment of $100.00. J. D. Parsons. John F. Axelson. Witnessed J. N. Byrne."

There is no competent evidence in the record that the defendant ever availed himself of the provision in the contract authorizing him to cancel the agreement above set forth. There is no evidence that he sent a notice by telegram canceling the contract. There is no evidence that he returned the $100 mentioned in the contract, except the testimony of the witness McKemey, as follows: "As I remember it, the defendant claimed to have sent a telegram to Mr. Parsons in which, under the terms of the contract, he canceled it. This, of course, was denied by Mr. Parsons, and this was one of the issues in the settlement. That was one of the controverted questions in the case brought by Parsons against the defendant for a specific performance of the above contract."

It appears that after this contract was drawn up for some reason the defendant refused to comply with it; that thereafter Parsons brought an action to enforce the specific performance of the contract; that the action was brought by Parsons directly against the defendant to enforce the contract hereinbefore set out. The Pogues were made parties by cross-petition. The Burlington Building Company were brought in, and in that suit the defendant herein filed a cross-petition against the Pogues to enforce the contract he had with the Pogues. They finally arrived at a settlement of the controversy as follows: "It is hereby agreed by and between all of the parties hereto, including J. D. Parsons, plaintiff, John F.

this date."

It appears that prior to this settlement above set out the Pogues had conveyed, at the request of Parsons, all their interest in the property in controversy to the Burlington Building Company, subject to their contract with the defendant; that in this settlement the plaintiff released all his interest in the land to the same company; that in consideration of his so doing Parsons agreed to pay to the defendant $2,700, and the cause was thereupon dismissed.

It appears further from the testimony of Jaques and McKemey, both of whom were witnesses for the plaintiff, that during the negotiations for the above settlement the defendant frequently said that he was under obligation to pay the plaintiff a commission for services in procuring the sale that resulted in the contract between Parsons and the defendant, and it appears from the record that the conveyance made by the Pogues to the Building Company and the release of defendant's interest in the land to the Building Company were all made at the instance and request of Parsons. It will be remembered that the defendant's contract with the Pogues evidenced the only interest which the defendant had in the property, and it in no way affected the right of the Pogues to make any conveyance of their interest in the property. Nor did the plaintiff undertake to sell for the defendant any interest in the property other than that which the defendant owned, and this is the interest which was ultimately released to the Building Company on the direction of Parsons, the purchaser procured by the plaintiff.

The defendant's counsel, in his argument,

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