Opinion
Hearing Granted by Supreme Court May 26, 1927.
Appeal from Superior Court, Los Angeles County; Chas. S. Burnell, Judge.
Separate actions by Louise Marie Douglas, as administratrix of the estate of Dean Cheney Douglas, and by S. I. White against the Southern Pacific Company. On death of S. I. White, Jennie H. White, as his administratrix, was substituted as party plaintiff. Judgments for plaintiffs, and defendant appeals. Reversed.
COUNSEL
W. I. Gilbert, of Los Angeles, for appellant.
Eugene C. Campbell, of Long Beach, for respondents.
OPINION
THOMPSON, J.
On May 7, 1921, the defendant and appellant was switching a steel gondola-type car at the Los Angeles harbor, when some part of the car struck a pile of ties which were stacked alongside of the tracks and upon which Dean Cheney Douglas and the original plaintiff, S. I. White, were sitting, and resulting in the death of Douglas and the injury of White. The exact cause of the accident is very much in doubt. There was testimony, which was also positively denied, that a piece of iron extended out from the side of the car a couple of feet and that the whole pile of ties was knocked out of place about 1 foot. There is other testimony that, which the ties were of the same length and stacked so as to clear the edge of the car by 6 or 8 inches, one of them, about 15 minutes prior to the accident, was observed to be shorter than the others as the witness saw it from the end away from the tracks. This would authorize the inference under the circumstances, especially as several witnesses testified that only one tie had been knocked off the pile, that it had been pushed over and protruded sufficiently far to be struck. The engine and car were traveling, according to the prevailing testimony, under 6 miles an hour, although one witness testified that he had told plaintiff’s counsel that they were running between 20 and 25 miles an hour. The lookout was not on the forward end of the car, but on the rear of the gondola near the top, from which point he claimed vantage in ability to see.
Under these circumstances, action was commenced to recover damages for the death of Douglas by the administratrix of his estate, and by White to recover damages for the injury suffered by him. The actions were tried together, and the jury returned a verdict in the action brought by the administratrix in the sum of $5,000 and in favor of White in the sum of $4,500. The defendant appealed from the judgments entered on the verdict, and by stipulation a single bill of exceptions is filed for use in the consideration of both causes. Since the appeals were taken S. I. White has died, and Jennie H. White, as administratrix of his estate, has been substituted as plaintiff.
The appellant complains that the evidence is insufficient to support the verdicts, and in support of this contention recites a stipulation that the defendant had no control of the platform upon which the ties were piled or over the ties, but that the platform was under lease to the Banning Company, a stranger to the defendant, hence that the defendant was only charged with operating its cars over and along the tracks with ordinary care. Aside from the fact that the jury were entitled to say from the evidence already recited that the crew in charge of this car failed to use ordinary care if they failed to observe a protruding tie, there was the other evidence of a piece of iron which stuck out 2 feet from the side of the car, which would also be sufficient to justify the verdicts.
However, there is a much more serious question raised by appellant with respect to the instructions. The judge gave the following instruction:
"It is admitted by defendant in this case that A. J. Beck, E. L. Carr, G. J. Clouth, D. Frazer, and Leslie Straight were employees of defendant and were acting within the scope of their employment at the time of the accident. If you should find that the injury to one plaintiff and the death of the other were caused by the negligence of these employees, or either of them, while operating defendant’s engine and car, at the time of or immediately prior to the accident, your verdict should be for plaintiffs and against the defendant, since an employer is bound by the acts of his employee while acting within the scope of their employment, and their negligence is, in law, deemed to be the employer’s negligence."
It will be noted that the jury was directed to return a verdict for the plaintiffs and against the defendant, in the event they found that the death and the injury were caused by the negligence of either of the employees. The appellant claims that the instruction is inconsistent with other instructions given by the trial judge on the subject of a pleaded defense-contributory negligence. These other instructions properly told the jury that, if White and Douglas did not use ordinary care for their own protection and such negligence contributed to their injuries, they should find for defendant, regardless of defendant’s negligence. The respondents assert that there was not sufficient evidence to warrant the jury in saying that there was contributory negligence, and, further, that the instructions should be read as a whole and the inaccuracies of one cured by the others. There was sufficient testimony to justify the jury in saying that the negligence of plaintiff in the one case and the negligence of the deceased in the other had contributed to the injury and the death, respectively. They were sitting on the ties in a position to observe whether they were in danger by reason of a tie being out of position, or even to observe the iron extending from the side of the car, had they directed their attention to it. Many times previously they had been on the ties, knew their proximity to the tracks, and that the tracks were being used for the purpose of switching. The jury should have passed upon this question, whether they did or not.
There appears to be some uncertainty in the adjudicated cases upon the question as to whether an instruction such as the one given in this case is cured by instructions covering the omitted condition. There is, in fact, no occasion for uncertainty or confusion concerning the principle involved. If we mentally situate ourselves in the place of a juror-on the receiving instead of the delivery end of the battery-and assume that we know no law other than that expressed in the instructions, the question may be resolved by asking ourselves whether the subsequent instructions harmonize and elucidate the inaccuracies in a previous instruction, or whether they conflict with or create confusion in our minds. In the former case, the error is cured; in the latter case, the error is not cured.
We have examined all of the authorities cited by respondents. Many of them do not direct a verdict under conditions specified, but merely fail to state all the law applicable to the subject. In these instances, of course, the instructions supplement each other and must be read together. Those authorities do not call for further analysis here. We do direct attention, however, to the case of Parkin v. Grayson Owen Co., 157 Cal. 41, 49, 106 P. 210, 214, in which this language is used to point the distinction:
"It is true that instructions are to be read and considered as a whole, but there is no room here for the application of the principle stated in Stephenson v. Southern Pacific Co., 102 Cal. 143, 34 P. 618, 36 P. 407, and other cases, that ‘the fact that when taken separately some of them may fail to enumerate in precise terms and with legal accuracy propositions of law does not necessarily render them erroneous; but it is sufficient if all the instructions taken together, and not being inconsistent with each other or confusing, shall give to the jury a fair and just notion of the law upon the point discussed.’ The said instructions are inconsistent and confusing. The direction that a violation of the ordinance follows from the determination of one fact by necessary implication excludes the consideration of other facts and circumstances." (Italics ours.)
The case from which we have quoted involved a determination of whether a team of horses had been hitched pursuant to an ordinance, and one instruction in effect told the jury that if one of the horses was not hitched it was in violation of the ordinance, and in two subsequent instructions the judge properly directed the jury that they should take into consideration all of the facts and circumstances to determine whether or not the team was hitched.
The case of Stephenson v. Southern Pacific Co., 102 Cal. 143, 34 P. 618, 36 P. 407, appears at first reading to be quite in point that where the jury is told to return a verdict for plaintiff and the instruction omits proper reference to the plea of contributory negligence, it may be cured by subsequent instructions covering that subject. The first-quoted instruction in that opinion says:
"If the jury believe from the evidence that the defendant was guilty of negligence as charged in the complaint, and that the plaintiff was injured thereby, your verdict should be for the plaintiff. ***"
The next instruction informed the jury "that, in determining the question of negligence in this case," they should take into consideration whether plaintiff used "ordinary care and prudence in the situation in which she found herself placed." (Italics ours.) In other words, the court immediately defined its use of the word "negligence" in the first instruction, and limited it by saying that in order for it to be the cause of the injury it must be freed of contributory negligence on the part of plaintiff. The opinion therefore does not present as clear a case of inconsistent and confusing instructions as first appears, and justifies the language used by the court therein, that "It is sufficient if all of the instructions taken together," are not "inconsistent with each other or confusing."
The case of Weihe v. Rathjen Mercantile Co., 34 Cal.App. 302, 167 P. 287, is determined on the authority of Stephenson v. Southern Pacific Co., supra, and Anderson v. Seropian, 147 Cal. 201, 81 P. 521. The last-named precedent, however, should not be considered as bearing directly upon the question herein involved for the reason that it simply states the rule that:
"If it appears therefrom that the jury were fairly and fully instructed on all the law applicable to the facts in the case, the judgment will not be reversed simply because the particular instructions, taken alone, may not have embodied all the law applicable."
It does not appear that there was a direction to return a verdict on certain conditions; nor that there was a conflict.
Ingalls v. Monte Cristo Oil Co., 23 Cal.App. 652, 139 P. 97, relied upon by respondents, uses the following language:
"It is contended on behalf of defendant that instruction 2 given by the court is erroneous because it tells the jury that if they find certain facts, then the plaintiff is entitled to a verdict; and that the court thus instructed in favor of the plaintiff regardless of whether the defendant knew or ought to have known of the unsafe and dangerous condition of the roof, and also regardless of the fact as to whether plaintiff did not have the same means of knowledge of the defect, if any existed, as did the defendant. It is further claimed that the instruction is erroneous because in conflict with instruction No. 4, which was a full statement, including these elements omitted from instruction 2. We are of opinion that instruction 2 is aided, rather than destroyed, by instruction 4. A similar situation with regard to instructions was under review in Stephenson v. Southern Pacific Co., 102 Cal. 143, 34 P. 618, 36 P. 407."
Instructions 2 and 4 therein mentioned are not set forth in full in the opinion, but we have examined the records in the case and find that instruction 2 did not omit the question of contributory negligence and that instruction 4 did elucidate and explain it.
So far we have considered those cases most firmly relied upon by respondents and which demanded careful analysis to prevent further confusion. The authorities relied upon by appellant which are pertinent are as follows: Rathbun v. White, 157 Cal. 248, 107 P. 309; Pierce v. United States Gas & Electric Co., 161 Cal. 176, 118 P. 700; Keena v. United R. R. of San Francisco, 57 Cal.App. 124, 207 P. 35; and Beyerle v. Clift, 59 Cal.App. 7, 209 P. 1015. In the first case the trial judge erroneously instructed the jury that it was necessary for the defendant to overcome a presumption of fact by a preponderance of the evidence, instead of stating to them that the presumption was entitled to consideration by them in arriving at the ultimate fact. The Supreme Court determined that the error was not cured by an instruction that the burden was upon plaintiff to prove every material allegation by a preponderance of the evidence. It says:
"The different declarations of the court were not capable of being harmonized."
In the case of Pierce v. United States Gas & Electric Co., supra, we find the following:
"It is clear that an instruction directing a verdict for the plaintiff in the event that the jury finds certain facts to be true, must embrace all the things necessary to show the legal liability of the defendant and to warrant the direction or conclusion contained therein that plaintiff is entitled to a verdict, and such is the rule in this state."
The cases of Keena v. United R. R. of San Francisco, supra, and Beyerle v. Clift, supra, present situations almost identical with the instant case. In both of these cases the court directed the jury to return a verdict for plaintiff if they believed the defendant was guilty of negligence in doing the acts complained of, and in both the court failed to include the element of contributory negligence, which defense had been pleaded. In both cases the trial judge had given, as here, appropriate instructions covering the question of contributory negligence; but in each case it was determined that the error was not cured by the subsequent instruction which "simply produced a clear conflict." We have examined the records in the case of Beyerle v. Clift, supra, and find that the concluding words of the instructions concerning contributory negligence were the same as those in this case, and that one instruction went even further in an effort to harmonize than in the present instance. In the instant case, the instructions given by the court were not tied back to the erroneous instruction in explanation or as a limitation upon it, as was done in the Stephenson Case. There is no way for us to tell which instruction the jury followed. It may have determined that there was no contributory negligence, or it may have ignored that question and followed the instruction complained of.
We have already determined that there was sufficient testimony to warrant the jury in passing upon the question of contributory negligence. We cannot say, therefore, that there has been no miscarriage of justice, as is required by section 4½ of article 6 of the Constitution.
The judgments are reversed.
We concur: WORKS, P. J.; CRAIG, J.