Rudolph v. Wannamaker

*101 BUDGE, J. — This appeal is from a judgment in favor of respondent and against appellants rendered in an action for the recovery of damages for personal injuries sustained by the respondent as a result of a collision between an automobile driven by appellant Mrs. Wannamaker and a motorcycle on which respondent was riding. Appellants assign and rely upon five assignments of error. Assignments of error Nos. 1, 2, 3 and 4 are predicated upon the action of the trial court in refusing to give to the jury certain instructions requested by appellants. Assignment No. 5 is directed against the giving by the court of its instruction No. 5. They will be considered and disposed of in the order assigned. It is first insisted that the trial court erred in refusing to give appellants’ requested instruction No. 1, as follows: “The court charges you that the plaintiff is not entitled to recover merely because the accident occurred, or merely because he has commenced an action against the defendants, and no negligence on the part of the defendants may be inferred from the mere circumstances of the accident having occurred or the suit having been brought.” No doubt the foregoing instruction is a correct statement of the law, but we believe it was substantially given by the court in its instruction No. 5 to the effect that the burden of proof rested upon respondent to show that his injuries were the result of appellants’ negligence. (Larrow v. Martell, 92 Vt. 435, 104 Atl. 826.) It is next insisted that the court erred in refusing to give appellants’ requested instruction No. 2, to the effect that respondent, in order to recover, must show more than a mere possibility of negligence on the part of appellants. The requested instruction is substantially covered by the court’s instruction No. 5, wherein the court instructs the jury that the burden of proof rested upon respondent to establish by a preponderance of the evidence the particular act or acts of *102 negligence upon which recovery was sought, and that such negligence was the proximate cause of the injury complained of. And in this connection it might be observed that while, the trial court’s instructions upon the question of burden of proving negligence might have been more specific, we are convinced that the jury was not misled, nor reached a wrong conclusion by reason of the failure of the court to accept in tofo appellants’ instruction No. 2. Further, we are of the opinion that the record would justify the trial court’s refusal to adopt that portion of appellants’ instruction No. 2 which embodies a caution to the jury that their verdict must not be based upon speculation, guess or'conjecture, as the evidence on both sides is clear and explicit and the facts are not such that there was reason to apprehend that the jury would resort to either speculation, guess or conjecture in arriving at a verdict. (Carpenter v. McKissick, 37 Ida. 729, 217 Pac. 1025.) Assignments of error Nos. 3 and 4 are based upon the action of the court in refusing to give instructions Nos. 3 and 4 offered by appellants upon the matter of proximate cause. The court’s instruction No. 5 advised the jury that if appellants were negligent in cutting the corner at the road intersection, and as a result of such negligence their automobile collided with the motorcycle of respondent, injuring respondent, the proximate cause of the injury was the negligent act of appellants, unless such injury was caused by or contributed to by the negligence of respondent, or by his failure to avail himself of the last clear chance. The negligent act is of common occurrence^ It was followed by results reasonably to be anticipated under the circumstances and known to the common experience of the jury to be its natural and usual consequences. We do not think that the evidence required an extended instruction upon what, in general, is the meaning of the term “proximate cause” as used in the law of negligence. We think that the court’s instruction No. 5 defines proximate cause with that degree of substantial certainty required by the evidence. This disposition of assignments Nos. 3 and 4 renders unnecessary a separate con *103 sideration of the last part of appellants’ assignment of error No. 5. Under assignment No. 5 it is first insisted that the court erred in giving that portion of instruction No. 5 quoting subdivision 7 of sec. 1, chap. 249, Sess. Laws 1921, which reads as follows: “Drivers, when approaching highway intersections, shall look out for and give right of way to vehicles on their right, simultaneously approaching a given point; provided, that street and interurban cars and emergency vehicles shall have the right of way at all times at such highway intersections.” It is contended that the subject matter of the foregoing subdivision of said section was not within the pleadings, and misled or was calculated to mislead the jury into the assumption that some issue of negligence based upon that particular paragraph of the law was presented to them. While it may be admitted that the question as to which of the parties had the right of way was not specifically raised by the respondent’s complaint and the appellants’ answer thereto, we are not altogether clear that the instruction was not relevant under the allegations of contributory negligence set up in appellants’ amended answer and the proof adduced at the trial in support thereof. In any event, appellants on cross-examination brought out evidence upon the question of which of the parties had the right of way. In view of this situation, we are not disposed to hold that the giving of instruction No. 5 was prejudicial error in the respect complained of. It is further insisted that the court committed reversible error in reading to the jury subdivision 9 of see. 1, supra, which is as follows: “The driver of any vehicle, about to turn, either from a standstill or while in motion, or about to stop, shall give timely signal visible to operators of other vehicles to the rear, of his intention to turn or stop, or change his course. Such signal shall be given either by the use of the hand and arm, or by the use of an improved mechanical or electrical device,” for the reason that such subdivision 9 covers matters and things *104 which were not within the issues and misled, or was calculated to mislead the jury into the assumption that some issue of negligence justifying a verdict against appellants might be found in their failure to observe that portion of the law. This subdivision provides for the giving of timely signals visible to operators of other vehicles to the rear. Respondent was not at any time to the rear of appellants’ automobile, but, on the contrary, was approaching it from in front. The quoting of this paragraph was not intended as an instruction that the signals must be visible to respondent. The remainder of the instruction confined the jury to consideration of that particular violation of the law relied upon by respondent as the basis for his recovery. Appellants invited an instruction in the form given by seeking to show, both upon direct and cross-examination, that the appellant driving the car did signal by holding out her hand. It is apparent that that portion of the law quoted did cover matters and things not within the issues, but it was invited by appellants, and it is clear that the jury was not misled thereby. The general rule would seem to be that the giving of an instruction inapplicable to the ease, but from which no prejudice is likely to result, is not reversible error. (Stinson v. Rourke, 4 Ida. 765, 46 Pac. 445; Miami Quarry Co. v. Seaborg Packing Co., 103 Or. 362, 204 Pac. 492; Bennington v. Northern Pac. Ry., 113 Wash. 1, 192 Pac. 1073.) From our examination of the instructions given by the court, considered as a whole, and the instructions offered by the appellants and refused, but sufficiently covered by those given, no substantial prejudicial error appears such as would require a reversal of the judgment. The judgment of the district court is accordingly affirmed, with costs to the respondent. William A. Lee, C. J., Wm. E. Lee, Givens and Taylor, JJ., concur.