Robinson v. Smith-Booth-Usher Co.

This is an action wherein the plaintiff seeks to recover damages for personal injuries sustained by

. Appellant first insists that the evidence proved negligence on the part of the defendant and failed to prove contributory negligence of the plaintiff. There was a substantial conflict in the evidence upon these questions, and the evidence favorable to the defendant, if believed by the jury (as it was), is sufficient to support the verdict.

Appellant directs attention to certain instructions given by the court to the jury at the request of the defendant. It is claimed that by these instructions the jury was told that if the plaintiff was guilty of a want of ordinary care in the slightest degree contributing directly to his injury, plaintiff could not recover, regardless of the negligence of the defendant or its servant. Reliance is placed upon the fact that at the date of this accident, November 25, 1911, there was in force a statute relating to the liability of employers to their employees (Stats. 1911, p. 796), wherein it was provided that in actions of this class, “the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was .slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee.” In addition to the instructions complained of by .appellant, the court gave to the jury an instruction requested by plaintiff, stating the doctrine of contributory negligence in accordance with said statute. At the close of his reading of instructions to the jury, the judge suggested that there was an inconsistency in the instructions relating to that issue. He then specially directed the attention of the jury to the instruction which he had given at plaintiff’s request and read it to them a second time, with the further direct statement that this was a correct statement of the law. In view of this action by the court, we deem it .unnecessary to examine 4he instructions complained of. Assuming that they were

Appellant also complains of defendant’s instructions numbered 14 and 24 as given by the court. These instructions related to the question of negligence of the defendant, if from the evidence the jury believed certain stated facts. The criticism upon these instructions is that each of them purported to state a complete defense, but omitted certain facts concerning which evidence had been introduced, pertaining to defendant’s alleged negligence. Assuming that the omitted ■evidence should have been stated, the record is not in the condition necessary to enable us to determine that the error was prejudicial to the plaintiff. “There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” (Code Civ. Proc., sec. 475.) The statement of the ease, as set forth in the transcript, says that the court, “on its own motion and at the request of the plaintiff, instructed the jury in part as follows. ’ ’ After setting forth certain instructions thus given, it is further said: “That thereupon the court instructed the jury in part as follows, at the request of the defendant.” After setting forth those instructions, it is said that “other instructions were given by the. court of its own motion and by request of plaintiff and defendant not here set' forth.” There is not even a statement that the instructions placed in the record include all of the instructions given with respect to the propositions covered by the instructions put into the record. “It is said in the transcript that the instruction complained of, ‘ among others, ’ was given. The others referred to are not contained in the transcript, and we have no means, therefore, of judging what bearing they may have had upon the one in question. If it should be conceded, therefore, that the instruction complained of should have been qualified or modified in some degree, it may be that the instructions omitted would have qualified or modified the one in question, and the rule is well settled that instructions are to be read and considered as a whole, and the fact that, when taken severally, some of them have failed to enunciate in precise terms and with legal accuracy propositions of law does not render them erroneous.” (Hanson v. Stinehoff, 139 Cal. 169 , 171, 173, [ 72 Pac. 913 ].)

The judgment and order are affirmed.

James, J., and Shaw, J., concurred.