I concur in the above opinion except as to assignments 6, 7 and 9, and the refusal to give requested instruction No. 5.
The rights of defendant were prejudiced by the admission of the evidence challenged under assignments 6 and 7. It was not shown that the insurance company which paid the damages had any connection with defendant whatever, and it was inadmissible as an admission of liability, and could only have been prejudicial and for that purpose, and though the answer was stricken to the second question, the jury were not instructed at that time to disregard it, and the fact that it was ordered stricken was not sufficient to erase its prejudicial effect. (Citti v. Bava, (Cal.App.) 254 P. 299, 204 Cal. 136, 266 P. 954.)
In Curtis v. Ficken, 52 Idaho 426, 16 P.2d 977, this court held that evidence of insurance is proper where such evidence was admitted to show bias or interest of a witness. Such was not the situation here. The Ficken case also cites instances in which evidence of insurance has been held improper.
The instruction complained of in assignment 9 and the refusal to give requested instruction No. 5 is assigned as error. The statement in the second paragraph of the instruction that "If you find from the evidence that defendant was negligent in either particular alleged in the complaint, and that said negligence in that particular concurred with some other cause or causes in bringing about and causing plaintiff's injury," should have contained after the word "causes" some phrase similar to "other than plaintiff's fault " (45 C. J., sec. 485, p. 920, note 98), since if it concurred with the contributory negligence of plaintiff (Rippetoe v. Feely, 20 Idaho 619, 637,119 P. 465), plaintiff could not recover, and requested instruction No. 51 or its substance *Page 361 was not sufficiently reflected in the instructions given. (Rice v. City of Portland, 141 Or. 205, 7 P.2d 989.)
Instructions must be responsive to the facts of the particular case. In point of sequence herein, if defendant was negligent in striking Van's wagon, and put in motion a dangerous agency which might cause injury, then if plaintiff without negligence on his part was injured, defendant would be liable to him in the absence of any other intervening negligence not his, which was not of itself the proximate cause. If there was no intervening cause, and none is here shown or suggested, then unless plaintiff was guilty of contributory negligence which might have been a proximate cause, defendant is liable. If there had been an intervening proximate cause for which plaintiff was not responsible, defendant would be liable. If he was responsible for it, it would seem, under the general rule, he could not recover, and that the instruction did not sufficiently make such distinction clear.
As to requested instruction No. 5, considering defendant's negligence in starting the runaway, continuing until the horse was stopped and all further danger ended so far as the runaway was concerned, then if defendant's negligence continued through, and was coexistent with, the running horse, if plaintiff acted under justifiable appearance and did not subject himself to greater risk than a reasonably prudent man would have been justified in doing under like circumstances, he was not guilty of contributory negligence; otherwise he was. The jury would have to weigh the relative questions; in other words, it is not so much whether plaintiff's negligence contributed, as whether his acts were negligent. If negligent, then under the facts here, they contributed. (19 Cal. Jur., Negligence, secs. 20, 72.)
Requested instruction No. 5 was proper on the question of contributory negligence, and should have been given. (Rice v.City of Portland, supra; 45 C. J., sec. 924, p. 1349; sec. 528, p. 972; sec. 932, p. 1356.)
I am authorized to say that Mr. Justice Wernette concurs in this opinion.
1 "You are instructed, Gentlemen of the jury, that the law contemplates that every person shall exercise ordinary care for his own protection against injury, and if he fails to exercise such care, and such failure, concurring and cooperating with the actionable negligence of defendant, contributes to the injury complained of, as proximate cause, he is guilty of contributory negligence and cannot recover." *Page 362