Mitchell v. T. A. Gillespie Co. ( 1912 )

Per Curiajm:

We would have no hesitation in affirming the judgment appealed from except for the refusal of the court to charge as requested by the defendant’s counsel, that the defendant master was only obliged to use reasonable care for the safety of plaintiff’s intestate, its servant.

•In his main charge the learned trial court instructed the jury only generally that in order to find a verdict in behalf of the plaintiff they must find that the killing of her intestate was the result of negligence on the part of the defendant. There was no instruction as to the degree of care which the law imposed upon the defendant as master, nor was there any attempt to define the character of negligence which would render it hable. At the close of the charge the defendant’s counsel requested the court to further instruct the jury that “ the defendant in this action was not the insurer of the safety of the deceased, and it was only obliged to-use reasonable care for his safety.” In response to this request the court said: “ I will charge that the defendant was not the insurer of the deceased,” and the defendant excepted to the refusal to charge as requested.

It is not claimed, that this request did not embody the correct rule of law; but it is urged that because the court did charge that the defendant was not an insurer of the safety of the deceased the jury must have understood that the defendant’s duty was measured by reasonable care only.

We do not think the jury could have received such an impression, either from the main charge or from the separation by the court of the request made by defendant’s counsel.

There was a further request made by defendant’s counsel as follows: “I ask you to charge that before they [the jury] can find a verdict against the defendant' they must find the defendant was guilty of some act of negligence, and that that act was the proximate cause of the deceased losing his life.” The court refused this request, except to say that the jury must find some act of negligence on the part of the defendant.

This request embodied a correct rule of law, but strictly speaking it was not applicable to the facts proved. There was no intervening cause which might have produced the death of the intestate. His death was caused either by the negligence of the defendant (in the absence of carelessness on the part of the intestate, which, under the proofs, the jury were justified in finding was not the fact), or by unavoidable accident. There was no intervening agency or act which could have been the proximate cause of his death. If the request was intended to instruct the jury that they must specify by their verdict some one of the negligent acts which the plaintiff asserted the defendant had been guilty of, still the request was properly denied. It was the duty of the jury to determine that the defendant was actually guilty of negligence in some definite particular, and that such act or omission was the proximate cause of the injury, but they need not announce by their general verdict which particular act or omission they regarded as negligent. • The refusal of the' court to charge as requested constitutes* therefore, no ground for reversal.

For the error in refusing to charge the other request, however, the judgment and orders must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Betts, J., dissenting in memorandum.