#### OKLAHOMA RY. CO. v. MILAM.

No. 3410.

Opinion Filed March 2, 1915.

(147 Pac. 314.)

1. TRIAL — (Instructions Ignoring Defense. In an action against a street railway company to recover damages for the death of a person killed by the railway company’s car within the city limits, and wherein contributory negligence on the part of the deceased is pleaded as a defense, and there is evidence tending to sustain such defense, an instruction which ignores the defense of contributory negligence and tells the jury that the operation of defendant’s car, at a. rate of speed exceeding, the city speed limit, is negligence per se, and, if such negligence is the proximate cause of the injury, the defendant will be liable, is reversible error.

2. APPEAL AND ERROR — Trial—(Instructions—Cure of Error, Such error was not cured by another instruction which tells the jury, in substance, the defendant will not be liable if the deceased was guilty of contributory negligence in going upon the defendant’s car track, in front of the approaching car, which struck him. unless the doctrine of the last clear chance applies. The two instructions are confusing, and it is uncertain which the jury will follow, and when the evidence is conficting, a verdict and judgment for either party, under such conflicting instructions, should be reversed

3. APPEAL AND ERROR — Negligence—Contributory Negligence — ■ Submission of Issues. Under section 6, art. 23 (section 355, William’s, Const., it is the duty of the trial court to submit to the jury the defense of contributory negligence in every case where it is pleaded and there is evidence tending- in any degree to prove it; and failure to do so is reversible error.

Kane, C. J., dissenting.

(Syllabus by the Court).

*JJrror from District Court, Oklahoma County; John J. Carney, Judge.*

*■*Action by Mancie Milam, executrix of the estate of Martin V. Milam, deceased, 'against the Oklahoma Railway Company. Judg*743ment for plaintiff, and defendant brings error.

Reversed and remanded.

*Shairtel, Keaton & Wells,*for plaintiff in error.

*Du Mars*<£• *Vaught*and *Warren If. Snyder,*for defendant in error.

BROWN, J.

The defendants in error commenced this action in the district *court*November 22, 1909, to recover of the plaintiff in error for the death of Martin Y. Milam, who died as the result of injuries inificted by one of plaintiff in error’s street-oars July 27, 1909, and it was alleged by plaintiff below that such death was the result of negligence on the part of the railway company’s employees and servants in change of said car. Plaintiff in error, defendant below, answered by general denial and pleaded contributory negligence on the part of deceased as the proximate cause of his death. Plaintiff replied, denying specifically that deceased was guilty of contributory negligence on his part which in any manner contributed to his death. On these issues the case went to trial July 25, 1911, and on July 27th the jury returned a verdiot in favor of plaintiff against .the defendant for $5,000. The defendant in due time filed motion for new trial, which was overruled by the court and exceptions taken, and it brings the case .to this court on error.

Plaintiff in error submits eight assignments of error for the consideration of this court, wherein it is alleged that the trial court committed reversible error in overruling the motion for new trial and in giving certain instructions to the jury and in refusing to give other 'instructions requested by plaintiff in error. The errors assigned here were properly complained of and brought to the attention of the trial court in plaintiff in error’s- morion for new .trial and exceptions duly taken to the overruling thereof. A brief statement- of the facts in the case will be of service in *744determining whether the trial court committed error in giving the jury certain instructions complained of by plaintiff in error.

On July 27, 1909, Martin Milam, the deceased, in company with, his wife, the defendant in error, his sister-in-law and some other relatives, came west on the north side of Twenty-Fifth street in. the city of Oklahoma City, to the Belle Isle oar line, across the tracks to the west side of said car line, and stopped at the place where passengers usually board the south-bound cars; that at rihis point there was a, double-track line, all south-bound cars using the west .track and .all north-bound cars using the east track, the (tracks being about 10 feet apart; that a few minutes' after reaching Twenty-Fifth street the deceased helped his wife and sister-in-law .and the other members of his family on the car known as the Belle Me car, going south; that while the Belle Isle car was standing at Twenty-Fifth street the Britton car approached from jtlbe south, on the east track. After the Belle Isle oar started south the deceased crossed the west track immediately behind the Belle Isle car and started in the northeasterly direction toward the sidewalk on the north side of Twenty-Fifth street, and which was west of both car lines and in the direction of his home. While crossing the east track on Twenty-Fifth street the Britton car going north struck him with great force, resulting in his death.

The testimony of W. W. Mason, ithe motorman who-■operated the car that killed 'the deceased, is to the effect that when he first saw ithe deceased his car had crossed Twenty-Fountli street and was running about 30 miles an -hour, and that at that speed it required about a block in which to stop it; that when he saw deceased he whistled at him, and he was then -about 15 feet from Ithe Britton car track and was walking toward the track.

“The man walked slowly, an ordinary gait, wasn’t slo-w, wasn’t fast, toward the track I was. on, 'and possibly a little bit to the north until he was about the center of the space between the two tracks, that is, the north and south bound tracks, and *745stopped like he was going to wait for the car to go by. I had already blowed the Whistle a time or .two to Mm in 'warning and he stopped like other people, like they were going to let the ear go by, and he started again then and stopped right on the track I was on. Q. How many steps after that from the point where you say he stopped until he stepped on your track? A. about three, between two and three steps. Q. When he started again what did you do? A. Applied the brakes to the car. Q. How far were you from him when he made the second start? A. 1 don’t think over 50 feet.”

Jack Young testified that the Britton car, after the accident, stopped between Twenty-Sixth and Twenty-Seventh streets. Mrs. Linn testified that the Britton car, .after .the accident, ran to Twenty-Seventh street before it stopped. Witness Sheeler testified .that 'he was working on a building near the place of the accident at the time it occurred, and further:

> “Q. At the .time, going back to the place.where you saw Mr. Milam, just tell the jury exactly what Mr. Milam did from the time you saw Mm until the oar struck Mm. A. He just simply started across the track and was walking .across the track going east when the oar struck him. Q. Did you see Mm stop ? A. Ho, sir; I did not. Q. Did you see him all the time from the time he started until the .time he was struck? A. I saw Mm [from] (the time he left the car until he was struck. Q. You didn't see him stop? A. Ho, sir. Q. In what direction did he travel from the end of .the oar ? A. Well, he was on the southwest side of the Belle Isle ear line of Twenty-Fifth street, that comer, and he was going kinder northeasterly direction, kinder cornering anross there. Q. You mean he was on the south side of the street on .the west side? A. Yes, sir. Q. He traveled diagonally across to the sidewalk of the north side of Twenty-Fifth street and to the east side of the track? A. Yes, sir; toward the street there.”

And on cross-examination:

> “Q. At what gait was he going? A. Seemed to be stopping pretty fast, seemed to be walking down tolerably fast, an ordinary walk. Q. Well, an ordinary walk? A. Yes, sir; an ordinary *746walk like. Q. You did not see Mr. Milam look up at any time? A. No, .sir.”

Witness Moore .testified,' in part, a.s follows:

> “Q. Did he do anything from the time he started until the car struck him ? A. If he did, I never saw it, and I was looking right ¡at ¡him. Q. Did he walk in a straight way or hesitate? A. Well, of course, I looked at if endways; I could not tell whether he walked straight ¡across the tracks or angling. Q. What I want to know is, did he stop .anywhere? A. No, sir; he never stopped at .all, I could safely swear that. Of course1, it all went out of my memory until this morning.”

' The plaintiff in error 'assigns a. number of errors, one of which is the giving of instruction No. 11 as follows:

> • “If you find from ,the evidence that ¡a car.operated by defendant’s servants struck the plaintiff’s intestate within the corporate limits of the city of Oklahoma City, ¡and that at such time ¡the oar was being operated at a rate of speed exceeding that prescribed by the ordinance of said city then in force, within the limits of the said city, such violation of the ordinance is in and of itself negligence, and if such negligence is .the proximate cause of tire ¡accident, the defendant would he liable for the resulting injury.”

Defendant below excepted to this instruction for the reason that it instructs the jury they may find a verdict for plaintiff on ¡account of excessive speed .of the car, if such negligence is the proximate cause of the accident, regardless of whether the plaintiff’s intestate was guilty of contributory negligence or not. The fact that the oar at the time of the accident was moving at a rate which exceeded the speed limit was uncontroverted. The city ordinance was introduced in evidence, which stated the speed limits within the corporate limits ¡should not exceed an average of 15 miles per hour, while the motorman operating the car which struck ¡the deceased testified his oar was running ¡at a rate of about 30 miles per hour. The only avenue of escape for the defend*747ant from liability was that the jury in their unguided consideration should conclude the rapid speed of the ear was mott (the proximate cause of the accident. It will be observed that this instruction covers the entire case and leaves only one condition from which the jury may not find for the plaintiff, viz., that the running of the car faster than the speed limit was not the proximate cause of the accident which resulted in the deceased’s death. The instruction gave no definite definition of proximate cause, and stated no facts which could possibly aid the jury in determining the only issue left open to them, whether or not the excessive speed at which the car was going was the proximate cause of the accident. Defendant below had pleaded contributory negligence on the part of the deceased as a defense to the action, but this was in no wise called to the attention of the jury. In Bashfield’s Instructions to Juries, sec. 391, p. 911, it is said:

> “An instruction which attempts to cover tire whole case, and authorizes a finding for one party or the other, according as the jury may determine certain facts, is erroneous if it omits any material issue, and the error is not cured by another instruction separately submitting the omitted issue.”

The doctrine announced by Mr. Bushfield is supported by the following authorities:

> “When contributory negligence is relied on in defense of an action for wrongful injury or death, a hypothetical instruction, directing a finding-in favor of plaintiff, which omits any reference to the facts tending to establish contributory negligence, and entirely ignores such defense, is erroneous, nor can such error be cured by other instructions given in behalf of either party.” *McVey v. St. Clair Co.,*49 W. Va. 412, 38 S. E. 648.

> “When contributory negligence is relied on in defense of an action for wrongful injury or death, a. hypothetical instruction, directing a finding in favor of plaintiff, which omits any reference to- the facts tending to establish contributory negligence, and entirely ignores such defense, is erroneous. Nor can such error be cured by other instructions given in behalf of either party.” *748*McCreery, Adm’x, v. Ohio River R. Co.,*43 W. Va, 110, 27 S. E. 327.)

> “In 'an acfaton (against a street railroad for injuries to one struck by a oar white crossing a street, an instruction that if ¡defendant’s servant did not have the car under control, and the injuries were caused by defendant’s negligence, plaintiff: was entitled ¡to recover was erroneous as ignoring the question of contributory negligence.” *(Solomon v. N. Y. Ry. Co.,*50 Misc. Rep. 557, 99 N. Y. Supp. 529.)

Defendant in error contends that, if the count committed error in instruction No. 11 by omitting to submit in connection therewith ¡the defense of contributory negligence, such error was cured by the giving of instruction No. 17 as follows:

> “If you believe from the evidence that plaintiff’s husband failed in ¡any respect to use that degree of care which an ordinarily careful and prudent person would have used under the circumstances, 'and that had he used such ca-re the .accident would not have happened, then such failure was contributory negligence', and plaintiff herein cannot recover unless you further believe from the evidence either that before the accident happened plaintiff’s husband ceased to be so¡ negligent at ¡a time when, by the exercise of due care on the part of the defendant, the accident could have been avoided, or unless you believe from the evidence that the defendant’s motorman, after seeing the dangerous situation of [the deceased and realizing that an accident was probable, knowingly failed to use some means which he had at hand .and could have used, and tire use of which would have avoided the accident.”

And in support of this contention counsel quotes from paragraph 9 of the syllabus in the case of *Trover v.*Spokane *Street Ry. Co.,*25 Wash. 225, 65 Pac. 284, which reads as follows:

> “An instruction that, if defendant’s car was running at a prohibited rate of speed, the jury would be justified in finding defendant guilty of negligence, and if such negligence caused- the injury complained of the verdict should be for plaintiff, unless he was guilty of contributory negligence, was not erroneous, as *749misleading the jury, when taken in connection with, other instructions given that the verdict should be for defendant, though negligent, if plaintiff could have avoided the injury.”

And in which it was held there was no. error, but in the instruction quoted .the question of contributory negligence was plainly and expressly called to the attention of the jury, which was not done in instruction No.. 11, given to the jury in .the trial of the case at bar. If in this instruction tire court, 'after stating the facts upon which the jury might find for the plaintiff, had added, as did the Washington instruction “unless the deceased was guilty of contributory negligence,” and thereafter had followed with instruction No. 17, there would -have been no ground for complaint by .the- defendant below.

Instructions 11 and 17, given by the count below, were conflicting, and were calculated to confuse, rather than direct the jury. In *Atlantic Coast Line R. Co. v. Caple’s Adm’x,*110 Va. 514, 66 S. E. 855, it is held:

> “An instruction, in .an action for a servant’s death, which authorized recovery if defendant was negligent .and such negligence proximately caused his death, but which omitted the question of contributory negligence, Which was pleaded, and which the evidence- tended to support, was erroneous. Error in an instruction in authorizing a recovery if a deceased servant’s death was proximately caused by defendant’s negligence, without mentioning contributory negligence, which was an issue, was not cured by an instruction given for defendant on contributory negligence, as the instructions were conflicting so that it could not be determined which controlled .the verdict.”

It is also held in *Payne v. McCormick Harv. Machine Co*11 Okla. 318, 66 Pac. 287, quoting from paragraph 3 of the syllabus, as follows:

> “The instructions of the court should clearly and intelligently set forth the law as applicable to the issues and evidence sub*750mitted, without being conflicting, contradictory, confusing, or misleading.”

This was a suit in replevin based on notes and chattel mortgage given by Payne to the Harvesting Company, defended on the ground that the company agreed to keep the machine up- and make it do good work, and that it had failed to eta so. Chief Justice Burford of the Territorial Supreme Court, 11 Okla. 326, 327, 66 Pac. 289, held certain instructions given by the court were contradictory, misleading, and prejudicial to- the rights of the defendant in that case. The cast reads as follows:

> “The third instruction, was to the effect that, if the plaintiff, at the time of the execution of the note and mortgage, in order to induce the defendant to sign the same, agreed that it would remedy any defects in the machine and make it do good work, and that the plaintiff failed to perform such agreement and remedy any such defects, then the plaintiff could not recover. This instruction was as favorable to the defendant as .the evidence1 would justify, and is unobjectionable.

> “The fourth instruction is open to criticism; it is as follows : Tf you believe from the evidence that the agreement between the plaintiff and defendant was that the defendant was not to keep the machine unless it- complied with 'all the conditions of the sale, and that the defendant was to have the privilege of returning said machine if- it did not so comply with the conditions of said sale, then, if the defendant was not satisfied with the machine, it was his duty to return it within a reasonable time^ and if he did not do so, he will be held to have elected to keep the machine and pay for it at the agreed price/ This instruction ignores the only defense that was made in the case, and is contradictory of the law as stated in instruction No. 3. * * * We think this instruction was calculated to mislead and confuse the jury and was therefore, prejudicial to the defendant.”

Counsel for plaintiff in error strenuously insist that the court committed reversible error in -instruction No-. 10 to the jury, as follows:

> “If you believe from the evidence that the deceased placed *751himself in a dangerous position, yet if the motorman, or other employee in charge of defendant’s car, saw, or by the use of that degree of car which all the circumstances required, could have seen, that the said Milam was in a place of danger, ox approaching a place of danger, upon or near the tracks of the defendant, and that the said Milam was unconscious of the danger from defendant’s approaching oar and 'appeared not to hear the sounds or signals of its 'approach or see the oar, and that thereafter the servants in charge of defendant’s oar might have avoided the accident and injury .to the deceased by the exercise of reasonable care, checking the speed of said car and getting the same under control, but that such servants negligently failed to do so, then such negligence of defendant’s servants would be deemed the proximate cause of the injury, notwithstanding such antecedent negligence on the part of the deceased.”

Complaint is also made of instructions 3, 4, and 9, but we do not consider it necessary to consider these instructions 3, 4, 9, 'and 10, since .the case must be reversed on prejudicial error growing out of instructions Nos. 11 and 17.

It is also contended by defendant in error that because of paragraph 5 of the instructions which defined proximate cause, it was not necessary again to tell the jury what constituted the same in instruction No. 11, and, further, that the evidence in this ease invoked the doctrine of “discovered peril” and “last clear chance” which entirely eliminated the question of contributory negligence, and that proper instructions were given by the court presenting the law of this doctrine. But the answer to this contention is that the jury alone can eliminate' the defence of contributory negligence. Section *6,*art. 23, (section 355, Williams’), Const. Okla., provides:

> “The defense of contributory negligence or of assumption of risk shall in all cases whatsoever, be a question of fact, and shall, ■at all times, be left to the jury.”

Under this constitutional rule, it is the duty of the trial *752court in every oase where there is evidence which, if trae, tends in any degree to' show contributory negligence, to- present that defense and issue to. .the jury in clear, and unambiguous instructions, and fadlure to do so will be reversible error. The question of contributory negligence was clearly an issue under .the evidence in the trial below.

By instruction No. 11 (in view of the undisputed evidence as to speed limit) the jury are practically told that at the time the deceased was struck, the speed at which the car was being operated constituted negligence on the part of defendant’s servant, the moibormian, and that if such negligence was the proximate cause of the accident, to find the plaintiff, without further telling them therein plaintiff could not recover if deceased was himself guilty of contributory negligence. Held error, for which the oase must be reversed.

It is useless to' consider the other assignments^ since the errors, if 'any .therein complained of, will not likely occur on ■another trial.

For the errors above stated, the judgment of the trial court is reversed and the case remanded for a new trial.

All .the Justices concur, except

KANE, C. J.

(dissenting). 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 oase, civil or criminal, on the ground of misdirection of the jury or the improper admission or *753rejection 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 (thia.t 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 It'he 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 light.” 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 h-ave used in the circumstances, -and the consequences of a failure -to- exercise such care upon the plaintiffs right to recover. If instruction N-o-. 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 co-urt, we then wo-uld -have a fair conservative statement of the law governing the points involved and probably the judgment wo-uld 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 olear and unambiguous -and state the law with -substantial fairness, .that is all that should be required ¡of them. Since a very early day tire rule in this jurisdiction has been that:

> “It is not required that the entire’ law of the case shall be *754stated in a single instruction, and it is therefore not improper to state the la,w, 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 ease fully -and accurately, it is sufficient.” *A., T. & S. F. Ry. Co. v. Marks,*11 Okla. 82, 65 Pac. 996; *Snyder v. Stribling,*18 Okla. 168, 89 Pac. 222; *Grant et al. v.*Milam, 20 Okla. 672, 95 Pac. 424.