The Iowa No Eyewitness Rule is that in the absence of an eyewitness or of any obtainable direct evidence as to what a deceased person did or failed to do by way of precaution, at and immediately before the injury of which complaint is made, an inference that men usually and ordinarily do instinctively exercise care for their own safety may be considered as evidence tending to establish that he, prompted by that natural instinct was during that period of time in the exercise of care for his own safety. Edwards v. Perley, 1936, 223 Iowa 1119, 274 N.W. 910; Azeltine v. Lutterman, 1934, 218 Iowa 675, 254 N.W. 854; Lorimer v. Hutchinson Ice Cream Co., 1933, 216 Iowa 384, 249 N.W. 220; Merchants' Transfer Storage Co. v. Chicago R.I. P.R. Co., 1915, 170 Iowa 378, 150 N.W. 720; Sanderson v. Chicago M. St.
Indeed we have held the definition of legal excuse in Kisling v. Thierman, supra, 214 Iowa 911, 916, 243 N.W. 552, 554, "is very broad and comprehensive in its scope." Edwards v. Perley, 223 Iowa 1119, 1126, 274 N.W. 910, 914. [5] We have held a number of times that where there is evidence of a legal excuse for the violation of a statute it is the trial court's duty to instruct on the effect of such evidence and it is not necessary to plead the legal excuse.
Under that rule, the deceased, in the absence of an eyewitness who can testify as to his activities during the material moments preceding the accident, is presumed to have been acting in the exercise of ordinary care for his safety. Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910 (1937); Mast v. Illinois Central R. Co., 176 F.2d 157 (8 Cir. 1949). However, "where there is eyewitness proof of the actions of the decedent, from observations either of his conduct or the movements of his vehicle, through the material moments preceding the collision, the no eyewitness rule and its presumption are * * * without any application."
"The rule is well settled in this state that in the absence of eyewitnesses or of any obtainable evidence as to what the deceased did or failed to do, by way of reasonable precaution for his own safety, at or immediately before his injury, there arises an inference that he, prompted by his natural instinct, was in the exercise of due care for his own safety. Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47; Riedesel v. Koch, 241 Iowa 1313, 45 N.W.2d 225; Spooner v. Wisecup, 227 Iowa 768, 288 N.W. 894; Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910, and many others found in the citators. The purpose of the rule we have recognized is to avoid any injustice due to the severe burden on plaintiff to plead and prove freedom from contributory negligence in order to recover in this type of action when there are no survivors or witnesses who can tell what the plaintiff's decedent was doing immediately prior to the accident.
Since the law does not require a party to plead legal excuse or emergency to be entitled to the benefit of the rule, we need not determine whether plaintiff has established its contention that legal excuse was pleaded. If there is evidence to support legal excuse it is the duty of the court to submit such issue to the jury under proper instructions particularly when request for such instruction has been made. Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552; Babendure v. Baker, 218 Iowa 31, 253 N.W. 834; Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910; Christenson v. Northwestern Bell Telephone Co., 222 Iowa 808, 270 N.W. 394; Sanford v. Nesbit, supra. In the Babendure case, supra, the vehicles were approaching each other from opposite directions.
Ames v. Waterloo C.F. Rapid Transit Co., 120 Iowa 640, 95 N.W. 161, 162. Briefly stated, the rule is that, in the absence of an eye witness who can testify as to the actual conduct of the injured person at and immediately before his injury, the presumption is that he was in the exercise of ordinary care for his own safety. Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910, 915. An eye witness within the rule is a witness who saw and observed the injured person during all the material moments preceding his accident. Hayes v. Stunkard, 233 Iowa 582, 10 N.W.2d 19, 22; Graby v. Danner, 236 Iowa 700, 18 N.W.2d 595. The burden is upon the one invoking the no eye witness rule to prove that there is in fact no eye witness or other obtainable direct evidence relating to the conduct of the person injured.
Although it is a mortally dangerous act to make such a left turn in the face of a closely approaching car, and although serious injuries directly result, still the victim in the closely approaching car must under the law of Iowa be affirmatively shown to have been free from negligence before there can be recovery for damages so inflicted upon him. If he is killed, however, and nobody saw or is found to testify about his handling of his car before or at the time he was struck, then under the law of Iowa his administrator in a suit for the wrongful death is entitled to an instruction upon the inference of due care to be indulged from the instinct of self preservation. It is true that such inference of due care prompted by the instinct of self preservation can not be availed of to controvert or annul the effect of direct credible testimony of an eye witness. Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910; Spooner v. Wisecup, 227 Iowa 768, 288 N.W. 894. Whether the defendant's account of what happened is or is not true, is not to be determined by an inference of due care on decedent's part. Young v. Railroad, 223 Iowa 773, 273 N.W. 885. But the plaintiff relied upon physical facts and circumstances to establish that a negligent left turn by defendant in the face of decedent's closely approaching car caused the accident. If his claim was established by preponderance of evidence, then he became entitled to the inference of due care on decedent's part. Hittle v. Jones, 217 Iowa 598, 250 N.W. 689. The defendant's account of what he saw was limited to the moment of impact and he could not and did not assume to testify to decedent's operation of his car prior to that time. See Davis v. Hoskinson, Iowa, 290 N.W. 497, compare Enfield v. Butler, 221 Iowa 615, 264 N.W. 546.
[4, 5] II. The rule is well settled in this state that in the absence of eyewitnesses or of any obtainable evidence as to what the deceased did or failed to do, by way of reasonable precaution for his own safety, at or immediately before his injury, there arises an inference that he, prompted by his natural instinct, was in the exercise of due care for his own safety. Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47; Riedesel v. Koch, 241 Iowa 1313, 45 N.W.2d 225; Spooner v. Wisecup, 227 Iowa 768, 288 N.W. 894; Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910, and many others found in the citators. The purpose of the rule we have recognized is to avoid any injustice due to the severe burden on plaintiff to plead and prove freedom from contributory negligence in order to recover in this type of action when there are no survivors or witnesses who can tell what the plaintiff's decedent was doing immediately prior to the accident.
The rule is that in the absence of eyewitnesses, or of any obtainable direct evidence as to what deceased did, or failed to do, by way of precaution, at or immediately before the injury, there arises a presumption or inference that he, prompted by natural instinct, was in the exercise of due care for his own safety. Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910; Spooner v. Wisecup, 227 Iowa 768, 288 N.W. 894; Low v. Ford Hopkins Co., 231 Iowa 251, 1 N.W.2d 95; Riedesel v. Koch, 241 Iowa 1313, 45 N.W.2d 225; Plumb v. Minneapolis St. L. Ry. Co., 249 Iowa 1187, 91 N.W.2d 380. [2] Plaintiff's two witnesses, Mr. McDermott and Mr. Green, did not see the accident, and could only testify as to the physical facts.
The plaintiff was therefore entitled to the benefit of the presumption, in the absence of any obtainable evidence as to what a deceased did or failed to do by way of precaution at the time, that he, prompted by a natural instinct, was in the exercise of due care for his own safety. See, Engel v. Chicago, B. Q. R.R. Co., 111 Neb. 21, 195 N.W. 523; Anderson v. Nincehelser, 152 Neb. 857, 43 N.W.2d 182, on rehearing 153 Neb. 329, 44 N.W.2d 518; Edwards v. Perley, 223 Iowa 1119, 274 N.W. 910. There was, as is hereinbefore pointed out, evidence sufficient to submit the question of whether or not Larson was guilty of negligence which was the proximate cause or proximately contributed to the collision.