I dissent from the order denying the application for a hearing in this court.
It is plain from the record on appeal that the modifications complained of did not have the effect of taking from the jury the issue of contributory negligence, or of preventing them from passing on the merits of that defense. Instructions on contributory negligence had already been repeatedly given. Among such instructions were these: One that the jury must find that the second collision occurred "without any negligence on the part of said Noce," before a verdict could be rendered for plaintiff and against defendant. The substance of this was repeated in the succeeding instruction. The jury was told in another they must find that the death of Noce was caused by the negligence of the defendant and "without fault" on his part before they *Page 520 could find for plaintiff. In another the charge was given that it was the duty of the motorman to save Note from injury, and that it was his duty to exercise ordinary care to save himself from injury — that the duty was reciprocal. In another it was declared that "contributory negligence is such an act or omission on the part of David Noce, deceased, amounting to a want of ordinary care as concurring or cooperating with the alleged negligent act of the defendant, proximately contributed to the injuries resulting in his death. The court instructs you that the basis for the rule of contributory negligence is that the party whose negligence proximately contributed to his injury must bear the harm which he brings on himself and which he might have avoided by reasonable care for his own self-preservation." In another the jury was charged that "the tracks of a street railway company are in themselves a sign of danger, and one who approaches same must exercise his faculties of sight and hearing to wait and listen for cars, and his failure to so act is negligence." In another the jury was instructed that if Noce was not exercising ordinary care and prudence for his own safety, and such failure on his part continued up to the moment of the accident and proximately contributed to the injuries resulting in his death, the verdict must be for the defendant, and that even if they find that the motorman was guilty of negligence, nevertheless if they find that Noce also was guilty of negligence and such negligence contributed to the injuries which resulted in his death, the verdict must be for the defendant. In another it was stated that if the jury found Noce could, by the exercise of ordinary care, have seen the car approaching, and have avoided the collision, and his death resulted from a failure to exercise such care, he was guilty of contributory negligence and the verdict must be for the defendant. And in still another it was declared to be the duty of Note to make reasonable use of his faculties of sight and hearing to watch and listen for approaching cars, and that it was his duty to use ordinary care for any car that might be approaching from the rear, and, if known to him, to seasonably leave the track in order to permit any such car to pass.
It is to be kept in mind that the modified instructions themselves are addressed to the defense of contributory negligence. In view of the evidence, the contentions of the *Page 521 parties, and the elaborate character of the preceding instructions on that subject, the jury could not fail to understand that if Noce contributed to his own death the verdict must be for the defendant. I find no warrant for the conclusion that defendant's rights were prejudiced by the modifications. It would be more in harmony with the charge as a whole to conclude that if the modifications carried any particular meaning to the jury it was that the court was only repeating to them what it had already declared in varying phrases in a number of instructions — that if the motorman's negligence was the proximate cause of the injury and plaintiff did not contribute thereto, defendant would be liable.
The reversal of the judgment rests upon the single proposition that the jury understood, or might have understood, the legal distinction, and thereby became confused, between the instructions first given on the subject — which declared that if the motorman's negligence was the proximate cause of the accident and plaintiff was free from contributory negligence, defendant would be liable, and the modifications that plaintiff's contributory negligence would bar his recovery unless the defendant "was without negligence," or unless "you find the injury could have been avoided by ordinary care of defendant" — the latter being repeated in the third instruction. Of course, the distinction is plain to the trained legal mind, but I do not believe that substantial justice can be done on appeal if verdicts are to be set aside upon any such ground. Considered in its entirety, the charge was more than fair to the defendant; indeed, it may with truth be said that it was more favorable to that side of the case. This decision is in the face of section 475 of the Code of Civil Procedure and section 4 1/2 of article VI of the constitution, for to hold that but for the error in the instructions a different result would have been probable, or that it resulted in a miscarriage of justice, is in effect to declare that if the judge, in the course of an elaborate charge, inadvertently happens to make a single error, the judgment must be set aside and the case tried over again, with the attendant delay and expense. It is against every reasonable probability that the jury noticed the contradictory statements in the charge, and, therefore, under the rules of decision on appeal, the error should have been held harmless. *Page 522 It is not enough that the jury might have been misled; the appellate court must be of the opinion after an examination of the entire record that such was the result of the error or the judgment must be affirmed. It is entirely problematical whether the jury detected the contradictions in the instructions, and how, then, can it be said in the presence of overwhelming proof of negligence on the part of defendant's servants that the misdirection resulted in a miscarriage of justice? Moreover, the failure of the district court of appeal to weigh the error under the constitutional rule of decision on appeal alone furnishes sufficient ground for granting the petition.
In the next place, it is far from clear that the evidence would support a finding of contributory negligence, and if this be so, the giving of instructions on that subject, even if erroneous, would not, of course, be prejudicial. Before the first collision occurred the car was traveling at the rate of over sixty miles an hour, and after that, according to the opinion, it slowed down to forty-five miles an hour. There is testimony that Noce had been on the track for some time prior to the first collision. Besides, it is extremely doubtful whether the jury accepted defendant's theory that Noce turned sharply to go upon the track, and there is ample ground for an assumption that the jury believed he looked in the direction from which the car came before making the turn. It is plain from the evidence that once on the track, he had no chance to escape. The required warnings were not given by the employees of defendant; the car continued at break-neck speed even after the first collision; and the impact was so great as to render the motorman unconscious. As indicating the high speed at which the car was traveling, the truck was carried 150 feet after it was struck, and it was impossible to stop the car before it had gone 2,000 feet. In short, the servants of defendant showed so flagrant a want of care in the operation of the car that the jury must have decided from the evidence that it was the proximate cause of the injury and that plaintiff was free from contributory negligence.
This is not a case where the evidence on the issues of defendant's negligence is evenly balanced or open to doubt. The gross negligence of defendant's servants is conceded, *Page 523 and by the decision the negligence of defendant has become the law of the case. Between the evidence of gross negligence on the one hand, and the doubtful claim of error on the other, it is our duty to grant the petition.