Oklahoma Ry. Co. v. Thomas , 63 Okla. 219 ( 1917 )

This case in respect to the defense of contributory negligence is similar to and follows the case of St. L. S. F. R. Co. v. Bell, 58 Okla. 84, 159 P. 336, in which I concurred in the conclusion reached, but dissented from the reasons given for the same.

In the instant case the defendant asked the trial judge to give the jury several instructions in its own favor as to this species of contributory negligence as a defense, all of which went beyond a mere definition of the defense and some of which in effect closely approached a direction to the jury to find that the evidence in the case established this defense, thus invading the province of the jury under section 6, art. 23 (Williams', sec. 355), of our Constitution; but, instead of invading what I regard as the province of the jury to instruct them for the defendant on this defense, the trial judge invaded their province and instructed them for the plaintiff to the effect that the evidence was not sufficient to establish this species of contributory negligence, which, although he may have been justified in thinking, he had no right to instruct because of this section of the Constitution.

As I understand the opinion of the court in these cases, they hold that there is no evidence of imputed negligence, and thus, in effect, that the question of the existence of a question of fact to be left to the jury under the evidence, which holding necessarily involves a denial of the converse of the statement in St. Louis S. F. R. Co. v. Hart, 45 Okla. 659,146 P. 436, that:

"In no event is the court authorized to direct a verdict or sustain a demurrer to the evidence upon the ground that it conclusively appears that the plaintiff is guilty of contributory negligence as a matter of law."

This statement in the Hart Case seems to be in perfect accord with the provision of section 6, art. 23 (Williams', sec. 355), of our Constitution that:

"The defense of contributory negligence * * * shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."

And this right seems to forbid the trial court to instruct the jury as it did in effect in this case that the negligence of the driver of the motor truck upon which the plaintiff was riding could not be imputed to the plaintiff as the contributory negligence of the latter.

I cannot say what these cases presage as to other phases of the question of imputed contributory negligence not involved in them, nor what, if any, grounds are thought to exist for differentiating them from cases in which the rule just quoted from the Hart Case seems applicable, although I see nothing different in the facts of either of these cases, except that this species of contributory negligence was not under consideration in the Hart Case, and here the defendant instead of the plaintiff invokes the above-quoted constitutional right; but, be this as it may, I am wholly unable to understand why, as I think is certain, this plain and simple provision of our Constitution is not allowed in these cases and effect demanded by its language, which is broad enough to include every species of contributory negligence and every question as to whether it exists, and to be equally as available to the defendant as to the plaintiff. It is certain that no practical or theoretical difficulty would be encountered in allowing this provision of the Constitution equal effect as to every species of this defense and as a right of each party.

Imputed negligence is unquestionably a species of contributory negligence, as I undertook to show by both reason and indubitable authority in the case of St. L. S. F. R. Co. v. Bell, supra; and, if this was not so, it could be allowed no effect whatever as an affirmative defense. The effect of the negligence of a third party as an affirmative defense against a plaintiff is the result of imputing it to the plaintiff as his own contributory negligence; and this species of contributory negligence is as clearly within the provisions of the Constitution above quoted as any other species can possibly be.

If, as seems to be well settled (St. L. S. F. R. Co. v. Hart, 45 Okla. 659, 146 P. 436), under this provision the court can in no case say, as a matter of law, that the evidence establishes the defense of contributory negligence, it must follow as a necessary corollary that the court can in no case say, as a matter of law, that the evidence does not establish this defense; and the trial court should do no more, when this defense is pleaded and insisted upon, than define it and advise the jury of its legal effect in leaving it to them. If any reason for a different view has ever been conceived, it has found no expression in any opinion by this court; but, as inexplicable as it seems to me, it has been repeatedly assumed, as in the instant case, that this provision of the Constitution does not apply to this species of contributory negligence or at least, does not apply as a right of a defendant. Such a discrimination against this species or between the parties as to their rights under this provision seems unreasonable and unthinkable to me.

It does not follow from allowing the parties an equal right to the benefit of this provision of the Constitution that the trial court could not exclude evidence clearly irrelevant and immaterial to such a defense, and thus fully protect itself from bad faith or any character of intolerable wrong in adducing evidence; but the parties are certainly entitled to the greatest reasonable latitude in introducing evidence they deem relevant and material to the issue made by this defense; and, although the trial judge may protect himself, the jury, and the adverse party from mere trespasses upon their time and attention, he, in respect to the evidence before the jury, has no more right to instruct them that it is insufficient to establish the same than he would have to instruct the jury that evidence clearly showing such defense was sufficient to establish the same.

If a defendant, without reason, should urge upon a jury that the evidence before it showed contributory negligence on the part of the plaintiff, it may be safely assumed that the fruits of his folly would prevent its repetition in subsequent trials; but, as stated in my concurring opinion in St. L. S. F. R. Co. v. Bell, supra, this provision of the Constitution would not prevent a new trial where it was clear that the finding of the jury as to the existence or nonexistence of contributory negligence was not fairly reached; and, where it is absolutely clear that there is no room for difference of opinion as to the existence or nonexistence of this defense, except upon the theory of mistake (other than an error of judgment), prejudice, or corruption, I have no doubt that the trial judge will usually find that he is able to set aside a wrong verdict upon some statutory ground, as I stated in St. L. S. F. R. Co. v. Bell, supra.

The provision of the Constitution under consideration, if allowed the effect required by its language, would greatly simplify the duties of the trial judge and of this court in respect to this defense; and, so far as I know, no one has so far suggested any substantial reason for not allowing it that effect; but, without explanation, it is simply denied such effect.

Although other and especially unrelated rights are not destroyed or impaired by this defense, and the latter may at least be incidentally affected and limited during the trial by the action of the trial judge in performing his duties in respect to such other rights, as, for instance, in the prevention of mere trespasses upon the time and attention of the adverse party, the jury, and himself, and in the correction of any error either in the express or implied disclosure of his own opinion as to the relevancy or materiality of evidence admitted upon this defense, the question of the actual or absolute existence of this defense, including the question as to whether any or all of the evidence that has been properly admitted is sufficient to prove the same, however far short of such proof, or however conclusive, the judge may think such evidence, is clearly for the jury under said section 6, art. 23 (Williams', sec. 355), of our Constitution; and, since this section of our Constitution relates primarily to the state of the evidence when both parties have closed, and to the instructions of the court to the jury, whenever the trial judge does more than define this defense in his instructions, and tells the jury what its effect is upon the plaintiff's right to recover, if found to exist, which seems to be but an act of leaving it to them, especially if he does more than this for the purpose of affecting the result of the issue upon this defense, he in vades their exclusive province, and violates a constitutional right of a party to the action.

It seems clear to me that this section of our Constitution should, and in most respects must of necessity, be construed as if the following parenthetical interpolations were a part of the same, that is, as now follows:

"The defense of contributory negligence or of assumption of risk shall (when pleaded and insisted upon), in all cases whatsoever (where under the law the proof of the same would defeat the plaintiff's right to recover), be a question of fact, and (the question as to whether this defense in fact exists) shall, at all times, be left to the jury (so that, although the trial judge may define this defense in order that the jury may know what he is leaving to them and may instruct them that its proof defeats recovery, he shall never instruct the jury that this defense or any element of the same has or has not been proven, whatever may be the state of the evidence in respect to the same)."

I think the opinion of the court clearly wrong in this respect. However, since the defendant invited the trial judge to invade the province of the jury upon the question of imputed negligence to instruct in its own favor, contrary to what it appears the jury probably should and would have found as to this defense, the defendant is not in a good position to ask a reversal because the judge did invade the province of the jury upon this question, and instruct in favor of its adversary what the jury probably should and would have found.

Although I dissent from the views of this court in respect to the defense of contributory negligence and in respect to the instructions of the trial judge thereon for the same reasons and to the same extent that I dissented from views to the same effect expressed in the opinion of this court in the case of St. L. S. F. R. Co. v. Bell, supra, and, although I have the same slight doubt that I there expressed as to whether I should concur in the conclusion reached, I here, as there, resolve the doubt in favor of the verdict and judgment of the trial court for the reasons here stated and more fully set forth in my concurring opinion in that case.