Prescott & Northwestern Railway Co. v. Henley , 124 Ark. 118 ( 1916 )

Wood, J.,

(after stating the facts). The appellant contends that the court erred in telling the jury that if the hand car was defective in the particulars alleged and that these defects caused or contributed to cause the injury, the appellant was guilty of negligence.

Learned counsel for appellant insists that under the allegations of the pleadings and the evidence appellee’s injury could only have been produced by the negligence of appellant as alleged in the complaint, or by the negligence of the appellee as set up in the answer, or by the negligence of the appellant and the concurring contributory negligence of the appellee; that the issues stated and the evidence showed that appellee’s injury was produced either solely by the negligence of the appellant or by the negligence of the appellant, which, concurring with the negligence of the appellee, caused the injury; that the instruction was misleading because there was no evidence of contributory negligence except that of the appellee; that there was no evidence to warrant a finding that appellant’s negligence contributed to produce the injury in any other way than concurring or combining with the negligence of the appellee, in which case the appellant would not be liable.

When the charge of the court is 'considered as a whole, as it must be, the instruction is not fairly open to the criticism suggested by counsel. The jury are plainly told in instructions numbered 2 and 3, given at the instance of the appellee, that if plaintiff himself was guilty of contributory negligence, that is, if he failed in the exercise of ordinary care, and that the injury would not have occurred had he been without fault, then the appellant would not be liable. And in instructions numbered 3 and 4, given at the instance of the appellant, the jury were told that, even if they believed that the hand car was defective and such defect was the cause of the injury, or contributed to cause the same, defendant would not be liable if the jury found that the plaintiff was guilty of negligence which “contributed to cause” the injury; that if the plaintiff himself was guilty of negligence which “helped to cause” the injury, he could not recover.

The fifth instruction on the part of appellant told the jury that contributory negligence was an absolute defense, and that if the evidence on the part of the plaintiff or on the whole case showed that the plaintiff was himself negligent and that such negligence upon his part helped to cause the injury, he could not recover, no matter how negligent the defendant may have been.

Now, when these instructions are read together, it is obvious that the court used the words “contributed to cause” to define independent acts, on the part of the appellant alone, that would constitute actionable negligence on its part.

The words “contributed to cause,” used in the instructions, had no reference whatever to the subject of contributory negligence, which is wholly a matter of defense; Acts of omission and commission, constituting the subject-matter of contributory negligence, are attributable- alone to the plaintiff, and never to the defendant. Therefore, the court could not have used the words “contributed to cause” for the purpose of conveying to the jury the meaning that the defendant would be liable if its acts of negligence, combined with acts of negligence on the part of the plaintiff, caused or contributed to the injury. ' In this connection we approve of the language of Chief Justice Valliant, in his dissenting opinion in Krehmeyer v. St. Louis Transit Co., 120 S. W. (Mo.) 78-95: “If the defendant’s negligent act did directly contribute to cause the injury, then the injury would not have occurred without his negligent act, and the defendant is held liable, not because of the acts of others or of conditions for whose existence he is not responsible, but -because of his own negligence. If defendant’s own act contributed to the result by concurring with other acts or conditions, and the result would not have occurred but for his contribution, he is liable, no matter what other possible causes might have existed, provided, of course, that the negligence of plaintiff himself was not one of the causes.”

(1) The manifest purpose of -the court by the use of the words “or contributed to cause” was to tell the jury that if the acts of negligence set up in the complaint were proved and that the injury was the direct result of such acts, that if -such acts were the sole cause of, or if they contributed or combined with other causes to produce the injury, appellant would be liable! This is the law. See Zei v. Brewing Co., 104 S. W. (Mo.) 99. For it is wholly immaterial whether there existed other causes and whether these causes were alleged in the complaint or proved by the evidence if the acts of negligence as alleged and proved did cause or contribute directly to produce the injury complained of. In such case' defendant would be liable unless some negligent act on the part of the appellee also concurred in and contributed to the injury.

(2) The appellant was not prejudiced and can not complain if there were other co-operating and concurring causes which were not alleged or proved. These would neither increase nor lessen appellant’s liability. The words 11 or contributed to cause, ’ ’ in the connection used, are but synonymous with the word “cause.” As was said in Bragg v. Street Ry. Co., 91 S. W. (Mo.) 527: “In this class of cases, contributing to the injury on the part of a tort-feasor is, in the eye of .the law, precisely the same as causing it. No gradation is tolerable. ’ ’ ■ Here, when the court told the jury that if the acts of negligence contributed to cause the injury, it was precisely the same, in legal effect, as saying if they ‘ ‘ caused the injury. ’ ’ And the words ‘ ‘ contributed to cause, ’ ’ to which strenuous objection is urged, really were surplus-age and added no material significance to the word “caused” already used.

(3-4) We have examined instructions numbered 5 and 7, given on behalf of the appellee, to which objections have been urged, and, under the facts of this record, these instructions were correct. The appellee was a minor, eleven years of age, at the time the injury occurred, and, under the defense of assumed risk, instruction No. 5 was proper and a correct declaration of law. The alleged defects in the hand car and the dangers incident to operating the same with such defects, which would have been perfectly patent and obvious to an adult of experience, would not be so to an infant eleven years of age and without experience in the operation of such machinery. While there is no allegation of a lack of experience, nor of the necessity to warn on account of tender years of, the employee, the undisputed evidence as to the boy’s age supplies these allegations 'and the complaint, after judgment, will be taken to conform to the proof. Moreover, the defense of assumption of risk, set up in the answer, made the instruction proper.

The instructions, upon the whole, fairly presented the issues to the jury. There is no reversible error in the record, and the judgment must, therefore, be affirmed.