83

fact that a clerk in a grain elevator was put in charge of handling grain for the day, will not authorize the court, in its charge to the jury, to assume that the clerk, at the time of his injury, was acting in the capacity of superintendent of the elevator.81 But, where the evidence is clear and conclusive as to the particular fact, and there is no evidence to the contrary, an instruction assuming its existence will' not work a reversal.82 Thus, where the defendant's counsel stated in his argument to the jury that he did not controvert the fact of the plaintiff's injury, and the evidence on that question was conclusive, it was not error in charging the jury to treat such fact as admitted. So, where the alleged negligence is the starting of the train while the plaintiff was in the act of alighting, and the manner of starting is: important only to the extent that it caused the plaintiff to fall or bethrown from the car, an instruction is not erroneous which assumes · that if the car started with a sudden jerk the defendant was negligent. Again, the error may be cured by other instructions in the charge, as, for example, where the court in one instruction assumes the fact that the plaintiff had sustained an injury, but in the following instruction leaves that question to the jury, but an instruction which assumes the fact of the defendant's negligence will not be cured by another instruction, given by the court of its own motion, which does not assume such negligence.se A charge that if the jury believe that "by reason of a defective road crossing, cattle-guards, ditches and bridge or either of them, the car on which plaintiff was riding was derailed," he may recover, has been held not to assume the existence of the defects enumerated.87 So, an instruction to the effect that a street railroad company must so maintain its tracks as not unnecessarily to impair travel upon the streets and render them more dangerous than they would be but for the tracks being in such condition, was held not objectionable as assuming that the tracks impeded travel upon the streets or rendered them more dangerous.88

App.), 27 S. W. Rep. 423 (no off. rep.); Atherton v. Tacoma R. &c. Co., 30 Wash. 395; s. c. 71 Pac. Rep. 39.

81 Decatur Cereal Mill Co. v. Gogerty, 180 Ill. 197; s. c. 54 N. E. Rep. 231; aff'g s. c. 80 Ill. App. 632. 82 2 Thompson Trials, § 2295.

83 Central &c. R. Co. v. Johnston, 106 Ga. 130; s. c. 12 Am. & Eng. R. Cas. (N. S.) 286; 32 S. E. Rep. 78.

4 Baltimore &c. R. Co. v. Slanker, 77 Ill. App. 577; s. c. aff'd, 180 Ill. 357; 54 N. E. Rep. 309.

95 Kansas City &c. R. Co. v. Becker, 67 Ark. 1; s. c. 53 S. W. Rep.406; 46 L. R. A. 814; Joliet v. Johnson, 177 Ill. 178; s. c. 52 N. E. Rep. 498; aff'g s. c. 71 Ill. App. 423.

86 Lynn v. Massillon Bridge Co., 78 Mo. App. 111; s. c. 2 Mo. App. Repr. 215.

ST Galveston &c. R. Co. v. Waldo(Tex. Civ. App.), 32 S. W. Rep. 783 (no off. rep.).

8 Houston City St. R. Co. v. Delesdernier, 84 Tex. 82; s. c. 19 S. W.. Rep. 366.

90

89

§ 7916. Proximate Cause of the Injury. The question whether the negligence complained of was the proximate cause of the injury is solely for the jury. It is not required, however, that the attention of the jury should be called to this element in direct terms. Thus, an instruction that, to warrant a recovery by the plaintiff, the jury must find the defendant negligent, and that the plaintiff's injury was caused by such negligence, without contributory negligence on the part of the plaintiff, will cover the ground.91 So, an instruction which presents to the jury the various acts of negligence charged and submits for their consideration the question whether the plaintiff was "injured in consequence thereof," though open to criticism as lacking in clearness, has been held not open to the objection that it allowed a recovery on proof of negligence not connected with the injuries in question.92 In an action for wrongful death in a mine it was held proper to refuse an instruction that, if the jury be-lieve from the evidence that the deceased was afflicted with heart disease and died of it, they must find for the defendant, although they may further believe that the fall of the mine roof hastened his death; since the fall of the roof was the proximate cause of death if it produced a shock from which the deceased did not rally.93 Here, as elsewhere, the court is not permitted to assume the existence of controverted facts. Thus, an instruction that the plaintiff cannot recover, although the defendant was negligent, if the jury cannot determine whether the injury was caused by the negligence of the defend-ant or another person, has been held open to the objection that it assumes that the injuries may have been caused either by the defendant or another, when the evidence in the particular case would have supported a finding that it was the result of their joint act, in which case the defendant would be liable.**

§ 7917. Instructions as to Mere Accident.-It is an elementary principle of the law of negligence that the plaintiff cannot recover if the injury complained of was the result of a mere accident without negligence on the part of the defendant, and the jury should be instructed on this point where it is one of the issues. Thus, where em

99 For instructions as to the proximate and remote cause in connection with contributory negligence, see Vol. I, § 488.

90 Pullman &c. Co. v. Laack, 143 Ill. 242; O'Fallon Coal Co. v. Laquet, 89 Ill. App. 13.

"Pittsburg &c. R. Co. v. Carlson, 24 Ind. App. 559; s. c. 56 N. E. Rep. 251.

95

92 Reisert v. Williams, 51 Mo. App. 13.

93 O'Fallon Coal Co. v. Laquet, 89 Ill. App. 13.

94 Kornazsewska v. West Chicago St. R. Co., 76 Ill. App. 366; s. c. 3 Chic. L. J. Wkly. 225.

95 See Vol. I, § 14.

97

ployés were working together at a forge, one holding a hammer on the forge and the other striking it with a sledge, and a piece chipped off the sledge and struck the plaintiff, one of the employés, in the eye, injuring him, it was held error to refuse to instruct the jury that if the evidence shows that the injury was the result of a mere accident the plaintiff could not recover. An instruction stating that "where, in the due exercise of his duties, an employé is injured through an appliance or surroundings of the business, and it does not appear that the employé was in fault," the employer has the burden of showing that he was free from negligence causing the injury, was held open to the objection that it took from the jury the question of unavoidable accident. An instruction that the plaintiff cannot recover "if the jury believe from the evidence that the injuries sustained by the plaintiff were the result of mere accident," without more, is not erroneous as tending to mislead, as words in the instruction are to be taken in their usual and ordinary meaning, and the expression "mere accident" implies that there must not have been any negligence on the part of the defendant contributing to the injury. So, the use of the word "accidental" in an instruction which states that the defendant is not liable if the injury was accidental, has been held not erroneous where it is plain that the term was used to negative the existence of carelessness or negligence,99 but it is error for the court to add to these words the expression, "if there was no negligence at all established against" the defendant there can be no recovery, as the jury may have understood this qualification to mean that the defendant must be free from all fault, whether the cause of the injury or not.10

98

§ 7918. Instructions as to Liability of the Defendant Notwithstanding the Plaintiff's Negligence.-An instruction that if, after the defendant knew of the perilous position of the plaintiff, it could have avoided the injury by exercising ordinary care, the verdict should be for the plaintiff, although he was negligent in assuming the dangerous position, and in case of gross negligence they could award exemplary damages, has been held proper, 101 But such an instruction must

Webster Man. Co. v. Nisbett, 87 Ill. App. 551.

Lindall v. Bode, 72 Cal. 245; s. c. 13 Pac. Rep. 660.

as Henry v. Grand Ave. R. Co., 113 Mo. 525; s. c. 21 S. W. Rep. 214; Chattanooga R. &c. Co. v. Huggins, 89 Ga. 494; s. c. 52 Am. & Eng. R. Cas. 473: 15 S. E. Rep. 848; Mt. Adams &c. R. Co. v. Cavagna, 6 Ohio C. C. 606.

99 Conner v. Citizens' St. R. Co., 146 Ind. 430; s. c. 45 N. E. Rep. 662. See also, Field v. Davis, 27 Kan. 400.

100 White v. Augusta &c. R. Co., 30 S. C. 218; s. c. 9 S. E. Rep. 96.

101 Central Pass. R. Co. v. Rose, 15 Ky. L. Rep. 209; s. c. 22 S. W. Rep. 745.

have some basis in the evidence.102 Thus, it was held proper to refuse an instruction that if, by proper diligence, the driver of the car could have seen the plaintiff in time to avoid the injury, the verdict should be for the plaintiff, although be was negligent in placing himself in such position, where it is shown by the evidence that the plaintiff jumped directly in front of the car from a car going in the opposite direction, and was not discovered in time to avoid the injury.103 So, it was error to instruct the jury that the defendant is liable, notwithstanding the plaintiff's negligence, if it could have avoided the injury to the plaintiff by exercising proper care, where the plaintiff stepped onto the track when the car was close to him, and the driver called to him and attempted to stop the car, and the principal negligence relied upon was the alleged failure to provide suitable brakes.104

$7919. Acting in the Face of Sudden Peril.-An instruction that, if the defendant negligently placed the deceased in imminent danger, the defendant is liable, although the plaintiff failed to avail himself of means of escape, is not erroneous when given in connection with an instruction that the plaintiff cannot recover if the deceased, before being confronted with the danger, had been ordered by the defendant to leave that part of the mine and could have escaped death by obeying the order with reasonable promptness.105 But an instruction which informs the jury that the fact that the plaintiff did not use the best means of escaping injury when warned, will not impute negligence to him, was held misleading where the injured person denied the warning, and the evidence showed that he did not understand the danger and consequently did not adopt any means of escape, as the facts in evidence did not warrant the instruction.106

§ 7920. As to Conflicting Instructions.107-Where instructions are in direct conflict with each other it is not generally important that one of such instructions states the law correctly.108 The doctrine on

102 Trauber v. Third Ave. R. Co., 80 App. Div. (N. Y.) 37; s. c. 80 N. Y. Supp. 231.

103 Dunn v. Cass Ave. &c. R. Co., 98 Mo. 652; s. c. 11 S. W. Rep. 1009.

10 Csatlos v. Metropolitan St. R. Co., 70 App. Div. (N. Y.) 606; s. c. 75 N. Y. Supp. 583.

105 Dingee v. Unrue, 98 Va. 247; s. c. 35 S. E. Rep. 794.

106 Smith v. Milwaukee Builders' &c. Exch., 91 Wis. 360; s. c. 30 L. R. A. 504; 64 N. W. Rep. 1041. See also, Jackson &c. St. R. Co. v. Sim

mons, 107 Tenn. 392; s. c. 64 S. W. Rep. 705; Illinois &c. R. Co. v. Davidson, 76 Fed. Rep. 517; s. c. 22 C. C. A. 306; 1 Chic. L. J. Wkly. 583; 46 U. S. App. 300.

107 For inconsistent or contradictory instructions relating to contributory negligence, see Vol. I, $ 472.

108 Richmond Passenger &c. Co. v. Steger, 101 Va. 319; s. c. 43 S. E. Rep. 612; St. Louis &c. R. Co. v. Gill (Tex. Civ. App.), 55 S. W. Rep. 386 (no off. rep.).

97

ployés were working together at a forge, one holding a hammer on the forge and the other striking it with a sledge, and a piece chipped off the sledge and struck the plaintiff, one of the employés, in the eye, injuring him, it was held error to refuse to instruct the jury that if the evidence shows that the injury was the result of a mere accident the plaintiff could not recover.96 An instruction stating that "where, in the due exercise of his duties, an employé is injured through an appliance or surroundings of the business, and it does not appear that the employé was in fault," the employer has the burden of showing that he was free from negligence causing the injury, was held open to the objection that it took from the jury the question of unavoidable accident. An instruction that the plaintiff cannot recover "if the jury believe from the evidence that the injuries sustained by the plaintiff were the result of mere accident," without more, is not erroneous as tending to mislead, as words in the instruction are to be taken in their usual and ordinary meaning, and the expression "mere accident" implies that there must not have been any negligence on the part of the defendant contributing to the injury. So, the use of the word "accidental" in an instruction which states that the defendant is not liable if the injury was accidental, has been held not erroneous where it is plain that the term was used to negative the existence of carelessness or negligence,99 but it is error for the court to add to these words the expression, "if there was no negligence at all established against" the defendant there can be no recovery, as the jury may have understood this qualification to mean that the defendant must be free from all fault, whether the cause of the injury or not.100

98

$ 7918. Instructions as to Liability of the Defendant Notwithstanding the Plaintiff's Negligence. An instruction that if, after the defendant knew of the perilous position of the plaintiff, it could have avoided the injury by exercising ordinary care, the verdict should be for the plaintiff, although he was negligent in assuming the dangerous position, and in case of gross negligence they could award exemplary damages, has been held proper. 101 But such an instruction must

98 Webster Man. Co. v. Nisbett, 87 Ill. App. 551.

97 Lindall v. Bode, 72 Cal. 245; s. c. 13 Pac. Rep. 660.

Ds Henry v. Grand Ave. R. Co., 113 Mo. 525; s. c. 21 S. W. Rep. 214; Chattanooga R. &c. Co. v. Huggins, 89 Ga. 494; s. c. 52 Am. & Eng. R. Cas. 473; 15 S. E. Rep. 848; Mt. Adams &c. R. Co. v. Cavagna, 6 Ohio C. C. 606.

99 Conner v. Citizens' St. R. Co., 146 Ind. 430; s. c. 45 N. E. Rep. 662. See also, Field v. Davis, 27 Kan. 400.

100 White v. Augusta &c. R. Co., 30 S. C. 218; s. c. 9 S. E. Rep. 96.

101 Central Pass. R. Co. v. Rose, 15 Ky. L. Rep. 209; s. c. 22 S. W. Rep. 745.