Wilkinson v. Phoenix Ry. Co. of Arizona

• Decision Date: 22 May 1925
• Docket Number: Civil 2278
• Citation: 236 P. 704,28 Ariz. 216
• Parties: H. R. WILKINSON, Appellant, v. PHOENIX RAILWAY COMPANY OF ARIZONA, a Corporation, Appellee
• Court: Arizona Supreme Court

236 P. 704

28 Ariz. 216

H. R. WILKINSON, Appellant, v. PHOENIX RAILWAY COMPANY OF ARIZONA, a Corporation, Appellee

Civil No. 2278

Supreme Court of Arizona

May 22, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. Fred C. Struckmeyer, Judge. Affirmed.

Messrs Cox & Moore, for Appellant.

Messrs Chalmers, Stahl, Fennemore & Longan, and Mr. Thomas G. Nairn for Appellee.

OPINION

ROSS, J.

H. R. Wilkinson brought this suit against the Phoenix Railway Company of Arizona to recover for personal injuries, which he alleges he sustained through the negligence of defendant while alighting from one of its cars. The case was tried before the court with a jury, and resulted in a verdict for the defendant. The plaintiff made his motion for a new trial, which motion was overruled. He prosecutes this appeal from the order overruling his motion for a new trial, and from the judgment.

There are 12 assignments of error. The first three are based on the instructions; the next three on language used by the court in its rulings during the trial; the next four upon the admission of certain exhibits in evidence. In the eleventh assignment plaintiff complains because the court permitted the attorney for defendant to cross-examine him as to his reasons for not presenting his claim for damages to defendant before bringing suit; and in the twelfth, because the court permitted defendant's attorney to ask leading questions of an expert medical witness (Dr. C. B. Palmer) concerning plaintiff's injuries. We will consider these assignments as grouped, in their order.

The first instruction is as follows:

"It might be interesting for you gentlemen to know that so far as cattle and goods are concerned, a railway company or a common carrier is an insurer, it must deliver at all events. Only an act of God relieves it from liability if such goods or cattle are destroyed. As to human beings, a railway company is only bound in its carriage of such persons to the exercise of reasonable care, as reasonable care has heretofore been defined."

And is objected to as containing matters not in issue in the case, and as an improper statement of the care required of carriers of passengers.

It is true the comparative degree of care required to be bestowed by a carrier of goods and a carrier of persons was not in issue, but we are unable to see wherein the statement of the rules of law governing such cases, when made for the purposes of comparison or illustration, could have had any other effect than to impress upon the minds of the jurors which one of the rules they were to use as their guide in arriving at their verdict. The rule against submitting abstract questions to the jury does not go to the extent of preventing the court from illustrating by appropriate references the issues in point.

In order to find out whether the "reasonable care" referred to in this instruction was an improper statement of the care required of a carrier of passengers, it is necessary to look to the court's instruction defining that term. It was as follows:

"In relation to the care required of each party, you will only hold them, whether the plaintiff or the defendant, to the exercise of ordinary care, which consists of doing everything which a person of ordinary care and prudence would do, and omitting to do everything which a person of like care and diligence would omit to do. In other words, place yourselves in the position of the parties, and then as reasonable men determine whether or not the plaintiff or -- whether or not the defendant or the plaintiff had done something which they should not have done or failed to do something which they should do under the like and similar circumstances."

10 C.J. 858, section 1297 (the author in the preceding section having stated the varying expressions of courts and text-writers defining the care to be exercised by carriers of passengers), lays down what we conceive to be the proper rule, as follows:

"In view of the limitations which will be stated hereafter, the rule is probably more accurately stated as the highest degree of care, prudence, and foresight that a prudent man engaged in the business, as usually conducted, would employ, that is, such care as is reasonably practicable; or in other words, such care, prudence, and foresight as can reasonably be exercised consistent with the practical operation of the road or mode of conveyance used, and the exercise of its business as a carrier, taking into consideration the circumstances and conditions existing at the time and place in question; and in some cases this degree of care has been expressed as the highest practicable care, caution, and diligence which capable and faithful railroad men would exercise under similar circumstances."

It is plain the instruction given is not a correct statement of the rule. However, it seems to be as strong and as favorable as the plaintiff thought himself entitled to have. His request upon the very question was in this language:

"Negligence as used in these instructions is a failure to use that degree of care and diligence that an ordinarily prudent person would use in his own affairs under like or similar circumstances."

The court did not give this instruction because, according to the notation thereon, it had been covered. It is very probable that the learned trial judge was led to give the instruction he did, and to which exception is now taken, largely by the above request of plaintiff. If plaintiff had presented the court with an instruction, in proper form, defining the degree of care imposed by law upon the carrier of passengers, and thus made his position on that question clear, a different situation would be presented. We think the rule is universal that a party cannot complain of an instruction given at his own request, or one given by the court substantially covering his request. He is bound by the theory of his own instructions. 14 R.C.L. 815, § 73. See, also, Denver & R.G.R. Co. v. Peterson, 30 Colo. 77, 97 Am. St. Rep. 76, 69 P. 578; Cicero & P. St. Ry. Co. v. Meixner, 160 Ill. 320, 31 L.R.A. 331, 43 N.E. 823; Hazell v. Bank of Tipton, 95 Mo. 60, 6 Am. St. Rep. 22, 8 S.W. 173. Since the erroneous instruction was induced by the plaintiff he is not in a position to complain. One who misconceives the law governing his rights in a trial, and succeeds in convincing the court thereof, ought to be estopped to take any advantage of it upon appeal.

The court told the jury "that the burden is upon plaintiff throughout the whole case of establishing to your satisfaction, by a preponderance or greater weight of the evidence, that defendant, . . . " etc. Exception is taken to the use of the word "satisfaction" as requiring too high a degree of proof.

In a fraud case recently we held a similar instruction correct. Schwalbach v. Jones, 27 Ariz. 260, 232 P. 558. But in the ordinary civil case we think it places too much of a burden on a plaintiff or the party asserting an affirmative. The jury must be guided by a preponderance of the evidence, even though it may not be satisfactory. Texas & P. Ry. Co. v. Ballinger (Tex. Civ. App.), 40 S.W. 822; Mock v. Hatcher (Tex. Civ. App.), 43 S.W. 30. If this instruction stood alone, or if the evidence was in any way equally balanced, its giving would require a reversal. In at least four other places in the instructions, the jury were told in words or effect as follows:

"The party having such burden of proof, as already told you, must carry such burden (and ) fulfill such duty by proving its proposition by a preponderance of the evidence. By a preponderance of the evidence, as used in these instructions, is meant the greater weight of the evidence."

The effect of these instructions upon the minds of the jurors is hardly problematical, since in only one was the word "satisfaction" used, whereas in four places the jury was given to understand the burden of proof was established by a preponderance of the evidence. It is not probable the instruction was prejudicial standing alone, for the reason the evidence in plaintiff's behalf was, to say the least, very weak and unconvincing.

The third instruction told the jury the "courtroom is not a place for sympathy," but that plaintiff was entitled to that which he had proved by the evidence, and they should not hesitate in giving him that. The reference to sympathy is excepted to as not in issue in the case. In many cases it is not only eminently proper but necessary that the court warn the jury against being influenced by sympathy, and the trial court in this case certainly stated the matter as fairly as could be asked.

In the fourth assignment the language of the court, to which exception is taken, was used in a ruling rejecting an offer of some documentary evidence offered by plaintiff, and was as follows:

"The objection is sustained. I will explain to the jury that figments of what somebody else has said is not evidence. . . . "

It is said the court by this language conveyed the idea to the jury that counsel for plaintiff was attempting to introduce manufactured evidence, or evidence that was untrue, and this is predicated principally upon the use of the word "figments." Granting the court used the word "figments," our reaction is not the same as plaintiff's counsel, but we think from the context the court must have used the word "fragments" and was incorrectly reported, and that the jury must have so understood.

During the argument counsel for plaintiff was, it seems, reading an instruction. It was one that he had requested and which had been given with some modifications. He read it without the modifications. Upon objection from defendant's ...