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.).

the subject of the cure of a defective instruction by the giving of other instructions which state the law correctly is thus stated by the Illinois Supreme Court: "Where instructions which are defective are cured by others unobjectionable, the latter must either directly refer to, and explain and qualify the former, or be supplementary to the former and supply what was omitted from the former; but obviously where the latter are supplementary to the former instructions the former must be correct as far as they go, and defective only in not going farther and including what is supplied by the supplementary instructions. But where one instruction says the law is one thing with regard to a particular matter or state of circumstances, and another instruction that the law is another and materially different thing with regard to precisely the same matter or state of circumstances, the instructions are repugnant and no repetition of the correct instruction. can cure the errors of those that are incorrect; for the jury, assuming, as is their duty, that they are all correct, may as readily follow those that are incorrect as those that are correct.”109 But an instruction that the burden of proof is upon the plaintiff throughout the case to show negligence by a preponderance of the evidence is not to be regarded as in conflict with an instruction that the happening of the particular accident was prima facie proof of negligence; since the fact that the law raises a presumption does not change the rule as to the burden of proof.110

§ 7921. Instructions should be Considered as a Whole.-It is a rule of general acceptance that, in construing a charge, each instruction is to be considered in connection with the entire charge; and that if, considering it as a whole, the court is satisfied that the jury was not improperly advised as to any material point in the case, the judgment will not be reversed on the ground of an erroneous instruction.111 Under this rule mere inartificialities which render instructions open to objection when standing alone, are regarded as harmless if, when taken with other instructions, they properly state the law of negligence applicable to the case in such a way that the jury could not have been misled thereby.11 But an instruction which is erroneous because it permits a recovery by the plaintiff upon proof that the plain

v. South Carolina &c. R. Co., 57 S. C. 205; s. c. 35 S. E. Rep. 513.

112 Louisville &c. R. Co. v. Hiltner, 22 Ky. L. Rep. 1141; s. c. 60 S. W. Rep. 2; rev'g s. c. 56 S. W. Rep. 654 (no off. rep.); Grube v. Missouri Pac. R. Co., 98 Mo. 330; s. c. 11 S. W. Rep. 736; Deweese v. Meramec Iron Min. Co., 54 Mo. App. 476;

tiff was free from negligence, without reference to the defendant's negligence, is not cured by a subsequent instruction correctly fixing the burden of proof upon the plaintiff, but failing to call the jury's attention to the error in the previous instruction.113

§ 7922. Error Harmless where Jury Not Misled.—Although the court may have improperly instructed the jury in some particular, yet, if it is apparent or highly probable that the jury were not misled by the instruction, and that it worked no harm to the party complaining of it, the error will be deemed a harmless one. Thus, where the court instructed the jury that an accident could have happened in only one of two ways, although there is no direct or positive evidence of its happening in one of the ways, the error was a harmless one, where, in the light of the evidence and the verdict, it is highly probable that the jury found that the accident happened in the other way and were not influenced by the error in the charge.114

114

§ 7923. Instructions in Actions for Negligent Injuries to Children. ~The law cannot fix any precise limit of age when a minor acquires the capacity of an adult. This question is for the jury, and is to be judged by the capacity and experience that the minor is shown to have had. One court, having this principle in mind, has held it improper, in an action for injuries to a child eight years old, to instruct the jury that the law does not require the same degree of care of children as of persons of mature age.115 An instruction that a child is required to act with such care and prudence as can reasonably be expected of children of its age and capacity, and that it is not guilty of negligence if it acts with such degree of care, sufficiently states the rule that the standard of care applicable to children is that degree which other children of common prudence ordinarily exercise under the same circumstances.116 In regard to the conduct of others toward children, an instruction that greater caution is required toward a child than toward one of mature years has been held not open to the objection that it unduly emphasizes the duty owed to the child, when taken in connection with other instructions given which require ordinary care

Short v. Bohle, 64 Mo. App. 342; s. c. 2 Mo. App. Repr. 1103; Missouri &c. R. Co. v. Lyons (Tex. Civ. App.), 53 S. W. Rep. 97.

113 Brush Electric Light &c. Co. v. Wells, 103 Ga. 512; s. c. 4 Am. Neg. Rep. 255; 30 S. E. Rep. 533. See also, Falke v. Second Ave. R. Co.,

38 App. Div. (N. Y.) 49; s. c. 55 N. Y. Supp. 984.

114 Kraatz v. Brush Electric Light &c. Co., 82 Mich. 457; s. c. 46 N. W. Rep. 787.

115 Atchison &c. R. Co. v. Roemer, 59 Ill. App. 93.

116 Jennings v. Schwab, 64 Mo. App. 13; s. c. 2 Mo. App. Repr. 923.

the subject of the cure of a defective instruction by the giving of other instructions which state the law correctly is thus stated by the Illinois Supreme Court: "Where instructions which are defective are cured by others unobjectionable, the latter must either directly refer to, and explain and qualify the former, or be supplementary to the former and supply what was omitted from the former; but obviously where the latter are supplementary to the former instructions the former. must be correct as far as they go, and defective only in not going farther and including what is supplied by the supplementary instructions. But where one instruction says the law is one thing with regard to a particular matter or state of circumstances, and another instruction that the law is another and materially different thing with regard to precisely the same matter or state of circumstances, the instructions are repugnant and no repetition of the correct instruction can cure the errors of those that are incorrect; for the jury, assuming, as is their duty, that they are all correct, may as readily follow those that are incorrect as those that are correct."109 But an instruction that the burden of proof is upon the plaintiff throughout the case to show negligence by a preponderance of the evidence is not to be regarded as in conflict with an instruction that the happening of the particular accident was prima facie proof of negligence; since the fact. that the law raises a presumption does not change the rule as to the burden of proof.110

§ 7921. Instructions should be Considered as a Whole.-It is a rule of general acceptance that, in construing a charge, each instruction is to be considered in connection with the entire charge; and that if, considering it as a whole, the court is satisfied that the jury was not improperly advised as to any material point in the case, the judgment will not be reversed on the ground of an erroneous instruction.111 Under this rule mere inartificialities which render instructions open to objection when standing alone, are regarded as harmless if, when taken with other instructions, they properly state the law of negligence applicable to the case in such a way that the jury could not have been misled thereby.112 But an instruction which is erroneous because it permits a recovery by the plaintiff upon proof that the plain

v. South Carolina &c. R. Co., 57 S. C. 205; s. c. 35 S. E. Rep. 513.

112 Louisville &c. R. Co. v. Hiltner, 22 Ky. L. Rep. 1141; s. c. 60 S. W. Rep. 2; rev'g s. c. 56 S. W. Rep. 654 (no off. rep.); Grube v. Missouri Pac. R. Co., 98 Mo. 330; s. c. 11 S. W. Rep. 736; Deweese v. Meramec Iron Min. Co., 54 Mo. App. 476;

tiff was free from negligence, without reference to the defendant's negligence, is not cured by a subsequent instruction correctly fixing the burden of proof upon the plaintiff, but failing to call the jury's attention to the error in the previous instruction.113

§ 7922. Error Harmless where Jury Not Misled.-Although the court may have improperly instructed the jury in some particular, yet, if it is apparent or highly probable that the jury were not misled by the instruction, and that it worked no harm to the party complaining of it, the error will be deemed a harmless one. Thus, where the court instructed the jury that an accident could have happened in only one of two ways, although there is no direct or positive evidence of its happening in one of the ways, the error was a harmless one, where, in the light of the evidence and the verdict, it is highly probable that the jury found that the accident happened in the other way and were not influenced by the error in the charge.114

§ 7923. Instructions in Actions for Negligent Injuries to Children. -The law cannot fix any precise limit of age when a minor acquires the capacity of an adult. This question is for the jury, and is to be judged by the capacity and experience that the minor is shown to have had. One court, having this principle in mind, has held it improper, in an action for injuries to a child eight years old, to instruct the jury that the law does not require the same degree of care of children as of persons of mature age.115 An instruction that a child is required to act with such care and prudence as can reasonably be expected of children of its age and capacity, and that it is not guilty of negligence if it acts with such degree of care, sufficiently states the rule that the standard of care applicable to children is that degree which other children of common prudence ordinarily exercise under the same circumstances.116 In regard to the conduct of others toward children, an instruction that greater caution is required toward a child than toward one of mature years has been held not open to the objection that it unduly emphasizes the duty owed to the child, when taken in connection with other instructions given which require ordinary care

Short v. Bohle, 64 Mo. App. 242; s. c. 2 Mo. App. Repr. 1103; Missouri &c. R. Co. v. Lyons (Tex. Civ. App.), 53 S. W. Rep. 97.

113 Brush Electric Light &c. Co. v. Wells, 103 Ga. 512; s. c. 4 Am. Neg. Rep. 255; 30 S. E. Rep. 533. See also, Falke v. Second Ave. R. Co.,

38 App. Div. (N. Y.) 49; s. c. 55 N. Y. Supp. 984.

114 Kraatz v. Brush Electric Light &c. Co., 82 Mich. 457; s. c. 46 N. W. Rep. 787.

115 Atchison &c. R. Co. v. Roemer, 59 Ill. App. 93.

116 Jennings v. Schwab, 64 Mo. App. 13; s. c. 2 Mo. App. Repr. 923.