Newton v. Main
| Decision Date | 24 September 1964 |
| Docket Number | No. 7352,7352 |
| Citation | 96 Ariz. 319,395 P.2d 360 |
| Parties | Albert NEWTON and Fidelity Acceptance Corporation, an Arizona corporation, Appellants, v. Albert MAIN, Sr., and Albert Main, Jr., Appellees. |
| Court | Arizona Supreme Court |
Langerman & Begam, Frank Lewis, Phoenix, for appellants.
Snell & Wilmer by Mark Wilmer, Donald R. Kunz and Paul V. Wentworth, Phoenix, for appellees.
This is an appeal by the plaintiff in a personal injury action from a verdict and judgment in favor of the defendant.
The facts concerning the injury are immaterial for the purpose of this appeal. Plaintiff's only assertion of error concerns an instruction given by the trial judge to the jury on the issue of contributory negligence. The instruction in question is as follows:
(Emphasis supplied.)
Plaintiff contends that what was otherwise a valid and correct instruction was made incorrect by the addition of the last clause. Plaintiff's analysis of this clause is that it leads to any or all of the following conclusions: (1) that plaintiff's evidence must clearly and unequivocally show he was free of contributory negligence; (2) the burden on the issue of contributory negligence is shifted to the plaintiff if any of the evidence offered by the plaintiff shows he was guilty of contributory negligence; (3) if evidence offered by the plaintiff shows negligence, the jury should find for the defendant even if the plaintiff's negligence was not a proximate cause of his injury; (4) if, after considering all of the evidence, it is the jury's judgment that the defendant has not proved the plaintiff guilty of contributory negligence by a fair preponderance of the evidence, the jury must still find for the defendant on the issue of contributory negligence if any evidence offered by the plaintiff shows contributory negligence.
In considering the use of language in law it is well to bear in mind Justice Holmes' admonition that:
'A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.' Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918).
As with particular words, the particular phrase in question is also 'the skin of a living thought'. Its color and content may best be determined by considering the circumstances in which it was used.
In an earlier part of his instructions the trial judge charged the jury as follows:
'The order in which the Instructions are given has no significance whatsoever as to their relative importance.'
Immediately after the instruction is question the trial judge told the jury:
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State v. Riley
...constitutionality of the (F)(6) aggravator when a jury, rather than a judge, conducts the fact-finding.¶108 Relying on one sentence from Newton v. Main , Riley also contends jury instructions must be prescriptive. See 96 Ariz. 319, 321, 395 P.2d 360 (1964) ("The test to be used in determini......
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Davis v. Burington
...Topper, 32 Ariz. 381, 259 P.2d 397. Instructions are not to be considered separately, but must be taken as a whole. E.g., Newton v. Main, 96 Ariz. 319, 395 P.2d 360. A case will not be reversed when the alleged error is predicated on an isolated part of the instructions, unless it appears t......
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Patania v. Silverstone
...naturally or reasonably would be likely to go.' Instructions must be read as a whole and in the light of each other, Newton v. Main, 96 Ariz. 319, 395 P.2d 360 (1964), and when so done the area to which the invitation extends was properly Defendants assign as error: (1) the failure to defin......
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Anderson Aviation Sales Co., Inc. v. Perez
...must be read as a whole and in the light of each other. Patania v. Silverstone, 3 Ariz.App. 424, 415 P.2d 139 (1966); Newton v. Main, 96 Ariz. 319, 395 P.2d 360 (1964). The judgment of the trial court is DONOFRIO, P.J., and STEVENS, J., concur. ...