Oklahoma Ry. Co. v. Milam , 45 Okla. 742 ( 1915 )

I cannot concur with my Brothers in the reversal of the judgment rendered by the court below. Whilst I have no desire to be classed among the "judicial modernists," I am not in favor of keeping the law of to-day tied to the law of a hundred years ago after it has been unleashed by the legislative department. Section 6005, Rev. Laws 1910, provides:

"No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."

This statute is entirely ignored in the majority opinion. The judgment is reversed solely "on the ground of misdirection of the jury," but the opinion is quite silent as to whether "in the opinion of the court, * * * after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." In my opinion, after an examination of the entire record, it does not appear that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. Moreover, by charge No. 17 the jury was correctly instructed as to the duty of the deceased to use that degree of care which an ordinarily careful and prudent person would have used in the circumstances, and the consequences of a failure to exercise such care upon the plaintiff's right to recover. If instruction No. 11, upon which the reversal is based and instruction No. 17 defining contributory negligence, and the last clear chance were consolidated into one instruction and given by the trial court, we then would have a fair conservative statement of the law governing the points involved and probably the judgment would not have been reversed. In my judgment, appellate courts should not be hypercritical as to the form or style and arrangement of instructions given by trial courts. If as a whole they are reasonably clear and unambiguous and state the law with substantial fairness, that is all that should be required of them. Since a very early day the rule in this jurisdiction has been that:

"It is not required that the entire law of the case shall be stated in a single instruction, and it is therefore not improper to state the law, as applicable to particular questions, or particular parts of the case, in separate instructions, and if there is no conflict in the law as stated in different instructions, and all the instructions considered as a series present the law applicable to the case fully and accurately, it is sufficient." A., T. S. F. Ry. Co. v. Marks,11 Okla. 82, 65 P. 996; Snyder v. Stribling, 18 Okla. 168,89 P. 222; Grant et al. v. Milam, 20 Okla. 672, 95 P. 424.