Moody v. Peterson

Bailey, J. The question of negligence in this ease being a question of fact, upon which the evidence was conflicting, it became highly important that the jury should be accurately instructed as to the rules of law applicable to that subject. The fifth and sixth instructions given to the jury at the instance of the plaintiff, however, are clearly erroneous, and the judgment must therefore be reversed. The sixth instruction wholly ignores the question of negligence on the part of the parents of the deceased, and holds that, “ If the jtiry should find from the evidence that the defendants are guilty of the wrongful act, neglect or default, as charged in the plaintiff’s declaration, and that the same resulted in the death of the deceased, then the plaintiff is entitled to recover in this action.” The objection to this instruction is too obvious to require comment. There being evidence tending to charge the parents of the deceased with contributory negligence the plaintiff was entitled to recover only in case the jury acquitted them of such charge, or found their negligence slight and that of the defendants gross, in comparison. Other instructions, it is true, attempted to submit '.o the jury the question of such contributory negligence, but in so far as they did so, they were in apparent conflict with the instruction under consideration, and we are unable to say that the jury may not have been controlled by this instruction rather than others. Its manifest tendency was both to confuse and mislead the jury. The fifth instruction fails to state the rule as to comparrtive negligence with accuracy. It holds, in substance, that even if the parents of-the deceased were guilty of slight negligence, contributing to the injury of which the deceased died, and that without such negligence the injury would not have happened, still the defendants are liable, if their servant or driver, by the exercise of reasonable and ordinary care, might have seen the danger to which the deceased was exposed in time to have averted it, and by the exercise of ordinary care and prudence might have prevented the injury. There are some decisions in this State which hold that a want of reasonable and ordinary care is gross negligence, and the instructions therefore may, perhaps, be understood as laving down the rule that slight negligence on the part of the plaintiff will no* bar a recovery, if the evidence at the same time convicts the defendants of gross negligence. It should be remembered however, that these words “ gross ” and “ slight ” as applied to this subject, are, to a great extent, relative terms. Some acts of negligence, doubtless, are so trifling and others so aggravated in their character, as to be properly denominated slight or gross when subjected to any comparison. But there are other acts which may properly be regarded as slight when compared with acts of negligence of a very much grosser and more aggravated character, and which, when compared witli the most trifling failure to exercise the utmost care, would hardly come within the proper meaning of that term. The doctrine of comparative negligence is founded upon a comparison of the negligence of the plaintiff with that of the defendants. This element of comparison is of the very essence of the rule. It must not only appear that the negligence of the plaintiff is slight, and that of the defendants gross, but also that they are so when compared with each other. This comparison the instruction above referred to wholly omits. The instruction is also objectionable in holding that the plaintiff might recover, notwithstanding slight negligence on the part of the jiarents of the deceased, if the defendants, by the use of ordinary and reasonable care and prudence, might have avoided the injury. What would have resulted from the exercise of ordinary and reasonable care, the jury had a right to consider, but as to what might have resulted they had no right to speculate. The former involved merely a consideration of probabilities, while the latter opened up the whole range of possibilities. The jury should have been confined to the probable result of the exercise of reasonable care, and required to base their finding upon that, but an instruction so framed as to give free scope to imagination or conjecture was improper. Many other questions are discussed by counsel, which we do not feel called upon to consider; but for the errors in giving the foregoing instructions, the judgment will be reversed, and the cause remanded. Judgment reversed.