DISSENTING OPINION ON MERITS. The pertinent part of Rule 1-7 to the instruction complained of, reads as follows:
"The court shall indicate on all instructions, in advance of the argument, those that are to be given and those refused. After the court has indicated the instructions to be given, each party shall have a reasonable opportunity to examine such instructions and to state his specific objections to each, out of the presence of the jury and before argument, or specific written objections to each instruction may be submitted to the court before argument. No error with respect to the giving of instructions shall be available as a cause for new trial or on appeal, except upon the specific objections made as above required."
A pertinent part of Rule 2-17 provides: *Page 93
"The brief of appellant shall contain short and clear statements disclosing:
". . .
"(e) . . . When error is predicated on the giving or refusal of instructions the statement must recite all of the instructions that were given."
Appellant has fully complied with this rule.
There is nothing in the rules indicating when either 1-7 or 2-17 was adopted. I do not think the time of adoption is in the least material. Both are in effect now, and both relate to the same thing and have a common purpose — regulating the giving of instructions and their consideration on appeal. They are in parimateria so to speak, and if they are to be reasonably enforced, they must be considered together. When so considered, they require that specific objections to an instruction must be made, and that when such objections have been made, this court will examine all the instructions given, to ascertain whether the instruction or instructions so objected to are erroneous and we can not be blind to what we see in such examination. Appellant has made a specific objection to Instruction 11 tendered by defendant. This objection applies to the whole instruction and not to the single sentence contained in the opinion. The questioned instruction is as follows:
"Instruction No. 11.
"You are instructed that you are not entitled to conjecture that any negligence, if any is found, is the direct or producing cause of plaintiff's injuries. You may not legally guess a verdict in favor of one of the parties. Substantial evidence of the facts which constitute the cause of action is necessary to the maintenance of a verdict. So in this case, the burden is upon the plaintiff to introduce substantial evidence of negligence charged in the complaint and likewise to introduce substantial evidence of facts going to show that the negligence *Page 94 charged and relied upon was a direct and proximate cause of the plaintiff's injuries. A failure in this regard on the plaintiff's part is fatal to a recovery in his behalf, and in such case, your finding should be in favor of the defendant."
The objection is as follows:
"The plaintiff objects to the court giving instruction No. 11 tendered by the defendant for the reason that this instruction refers to substantial evidence. In other words the plaintiff in order to make out a cause of action would have to support the allegations of the complaint by substantial evidence. The plaintiff was only duty bound to establish the material allegations of his complaint by a fair preponderance of the evidence."
I agree with the statement in the opinion: "This instruction was not couched in words that we can approve," but I can not agree that "the objection did not point out any defect that was not more `seeming' than real." It pointed out the exact error which makes the instruction "not couched in words that we can approve." Section 4 Art. 7 of our state constitution gives this court jurisdiction of appeals and writs of error. The purpose of giving jurisdiction in such cases is that our court may examine the record of the trial court to determine whether or not reversible error has been committed therein, and thereby to promote the administration of justice. In the accomplishment of this end we have inherent power as well as statutory authority (§ 2-4718, Burns' 1946 Replacement) to make rules to govern and control procedure. Any rule we make must be subordinate to the law, particularly the organic law, and must not enlarge or restrict jurisdiction. A litigant cannot by a rule of court be deprived of a substantial right or so embarrassed in its exercise that he may be deprived, without his fault, of its benefits. 14 Am. Jur. § 152 Courts pp. 357, 358. A principal reason for making *Page 95 such rules is "to facilitate the administration of justice." 14 Am. Jur. § 153 Courts p. 359. Such rules should "be made to yield to circumstances to promote the ends of justice," since in any event they "are merely the means to accomplish the ends of justice." It has been held that "the court may disregard the fact that a litigant has failed to comply with such rules" if to do so is in aid of the administration of justice. 14 Am. Jur. § 157Courts p. 361. In The United States, Pltff. in Er. v.Breitling (1858), 20 How. (U.S.) 252, 254, 15 L. Ed. 900 at page 901, The United States Supreme Court, speaking by Taney, C.J. concerning the application of rules of the court said:
"And it is always in the power of the court to suspend its own rules, or to except a particular case from its operation, whenever the purposes of justice require it." (Our Emphasis.)
In Farmer's Bank Trust Co. Receiver v. Brown (1933),249 Ky. 820, 61 S.W.2d 628, 91 A.L.R. 325, 326, speaking on the same subject, the Supreme Court of Kentucky said:
"The courts endeavor to do justice, and equity and rules are adopted in their efforts to do so; but when the reason that evoked the rule fails, the rule fails also, and courts may make and follow such exceptions thereto as will enable them to prevent injustice. . . . To do justice is an ever persistent rule to which all others must yield." (My Emphasis.)
In Keeshin Motor Express Co. v. Glassman (1941),219 Ind. 538 at 557, 38 N.E.2d 847, in holding an instruction erroneous that was not specifically questioned by either party, this court said:
"Anticipating the complaint, which in other cases has come on petition for rehearing, that our opinion and judgment with respect to this error is upon a *Page 96 ground not presented by appellants, we give the same kind of answer as appears in Big Creek Stone Co. v. Seward (1895), 144 Ind. 205, 209, 42 N.E. 464, 43 N.E. 5 and Cleveland, etc., R. Co. v. Moore (1908), 170 Ind. 328, 363, 82 N.E. 52, 84 N.E. 540."
In Big Creek Stone Co. v. Seward, supra, on the petition for rehearing, this court said:
"Complaint is made by counsel that the sufficiency of the pleading was determined upon a question not argued by counsel for appellant, and which question was, therefore, waived.
". . . It may be inquired, therefore, should the court be controlled by a rule which would estop counsel and parties to the extent that it should hold sufficient a state of facts which plainly disclosed that no cause of action existed? Most certainly not. While we are not obliged to search for errors not made manifest by the record as the appellant brings it to us, we are not so restricted by that rule that we are required to hold a pleading sufficient when it is clearly insufficient, and when to do so would create a precedent well calculated to mislead the profession and lend confusion to well settled principles of pleading and practice. . . . If the court were limited to the arguments and reasoning of counsel in its decisions of cases, . . . many cases would lead us far from what we understand to be the true object of the court."
In Cleveland Etc. R. Co. v. Moore, supra, on petition for rehearing, this court said:
"In his brief on petition for rehearing counsel for appellee . . ., suggests that it seems that the opinion and judgment of this court proceeds largely, if not entirely, on grounds not presented. . . . We were compelled to study the bill of exceptions, and, having done so, we were not at liberty to disregard what our eyes perceived as to the facts in their true relation to each other. Where resort to the record is necessary, the case will be determined by the record, and in such case *Page 97 the court will not regard itself as governed by the conceptions of counsel on either side as to the nature of the controlling facts."
The court then adopts as its own the last sentence quoted above in Big Creek Stone Co. v. Seward, supra.
In the Glassman case, supra, at page 557, 558 this court further said:
"The errors assigned by appellants brought in question fourteen of the instructions and six in particular. We had to examine them critically to discover whether or not they were repetitious. In that examination we discovered that the sixteenth was not only repetitious but also incurably erroneous. We may not blind ourselves to this fact or its consequences." (Our Emphasis.)
The court then quoted with approval the last sentence quoted above from Cleveland Etc. R. Co. v. Moore, supra and also the last sentence quoted above in Big Creek Stone Co. v. Seward,supra. The two involved rules were in full force and effect when the Glassman case was decided.
From a consideration of these authorities I think it safe to say, no court of appeals may rightly construe its own rules in such a manner as to permit it to refuse to consider an error directly presented to it for determination and correction; nor may it, by construction, so pervert its rules as to allow visible error to remain uncorrected. The rules cannot be a hinderance to the administration of justice. It is no answer to a litigant to say, we can not see the error for our rules. Our rules were not intended to, and do not permit such interpretation. To allow such interpretation, in my opinion, amounts to a refusal to perform our constitutional duty. In the case at bar we do not have to go beyond the briefs to find the errors discussed, and on *Page 98 the authority of the Glassman case, I shall not "blind" myself to the errors so clearly demonstrated there. Instruction 11 was carefully and specifically made to apply only to appellant's evidence. A different rule, and I think the correct one, was given the jury for the consideration of appellee's evidence, in the court's Instruction 4, as follows:
". . . contributory negligence on the part of plaintiff is a matter of defense and may be proven under the answer of general denial. . . . The burden of proving such contributory negligence rests upon the defendant, which contributory negligence must be proven by a fair preponderance of the evidence. Contributory negligence may be established by evidence introduced by the plaintiff as well as the evidence introduced by defendant, . . . ."
Thus for the appellee we have the correct rule given, that it may discharge its burden of proving contributory negligence, by appellant's evidence as well as its own, and it is required to make this proof only by a fair preponderance. But for the appellant we have a different rule, a higher degree of proof required. As stated in appellee's mandatory Instruction 11, appellant is required to introduce the evidence himself to prove the charges in the complaint. He must, himself, further introduce evidence showing that the negligence charged was a direct and proximate cause of his injuries. He may not have the benefit of inferences arising from the evidence, or of evidence introduced by appellee. These facts he must establish — not by a fair preponderance of evidence — but by substantial evidence. The jury was then told "A failure in this regard on the plaintiff's part is fatal to a recovery in his behalf, and in such case, your finding should be in favor of the defendant." This is error. Appellant was entitled to have the jury consider all the evidence in the case in determining whether *Page 99 his case was made out. City of Indianapolis v. Cauley (1904),164 Ind. 304, 311, 312, 73 N.E. 691, and cases cited.
The opinion labors to show that "a fair preponderance of the evidence" and "substantial evidence" mean the same. The words "substantial evidence" have been used as persuasive dicta and by way of argument by our court in deciding a criminal case.Sylvester v. State (1933), 205 Ind. 628 at page 632,187 N.E. 669, where proof of guilt must be beyond a reasonable doubt, but never before, so far as I can find, have they been used in an instruction to a jury in either a criminal or civil case. In that case at page 632, the court was careful to say: "We use the word `substantial' as meaning more than seeming or imaginary." In the instruction complained of the word "substantial" was not so limited. Never before, so far as I can find, have these words been used as a synonym or substitute for "a fair preponderance of evidence." The words "substantial evidence" may mean a much higher degree of proof than "a fair preponderance." It could mean a higher degree than "beyond a reasonable doubt."
The rule applicable to appellant's evidence is clearly and correctly stated in 32 C.J.S. § 1020 Evidence p. 1047, as follows:
"In ordinary civil actions a fact is sufficiently proved by a preponderance of evidence, and the verdict or finding should be based on such preponderance, the requirement of a higher degree of proof being improper. A bare preponderance, however slight, is commonly regarded as sufficient."
20 Am. Jur. § 1250 Evidence p. 1101, 1102, states the rule of fair preponderance, thus:
"However, the general rule would seem to be that a party is not required to establish a fact to the *Page 100 satisfaction of a jury or to present evidence sufficient to `convince their minds' of any fact necessary to be shown. . . . Accordingly, it has been said that in civil cases a fact may be found in accord with the preponderance of the evidence, and yet the mind may be left in doubt as to the very truth. The triers of an issue in such cases should, when doubts arise, find for the side whereon the doubts have less weight. . . ."
In The Indianapolis, Peru and Chicago R.R. Co. v.Collingwood (1880), 71 Ind. 476, 477, Judge Byron K. Elliott, speaking for the court, said:
". . . It is only necessary in civil cases, that the circumstantial evidence should `agree with and support the hypothesis which it is adduced to prove,' and, to quote again from Prof. Greenleaf, `it is not necessary that the minds of the jurors be freed from all doubt; it is their duty to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth."
This decision by Judge Elliott has been cited with approval by more than twenty Indiana cases, also by Lillstrom v. NorthernP.R. Co. (1893), 53 Minn. 464, 55 N.W. 624, 20 L.R.A. 587.
In Davis v. Guarnieri (1887), 45 Ohio St. 470, 15 N.E. 350, 4 Am. St. Rep. 548, 560, we find this statement:
"The jury was dealing with the probabilities in the case. It is not necessary to the determination of the issues in a civil case . . . that the triers should believe the existence of any material fact, but that the probabilities, when weighed by them, preponderate in favor of the fact which they find to be established by the proof."
See also Great Atlantic and Pacific Tea Co. v. Custin (1937), 214 Ind. 54, 60, 61, 62, 13 N.E.2d 542, 14 N.E.2d 538. *Page 101
In The Terre Haute and Indianapolis R.R. Co. v. Buck, Admr. (1884), 96 Ind. 346, again speaking for the court, Judge Elliott at pages 362, 363, said:
"It is not necessary in any civil case to prove the substance of the issue by direct or positive evidence. It is sufficient if there are facts fairly warranting the jury in inferring the conclusion insisted upon by the plaintiff."
As bearing on the subject, see also; Hedrick v. D.M. Osborne Co. (1884), 99 Ind. 143, 147; Evansville and Terre Haute Ry.Co. v. McKee (1884), 99 Ind. 519, 525; Riehl v. TheEvansville Foundary Assn. (1885), 104 Ind. 70, 74, 3 N.E. 633;The Louisville, New Albany Chicago Ry. Co. v. Thompson,Admr. (1886), 107 Ind. 442, 456, 8 N.E. 18, 9 N.E. 357;Chicago, etc. R. Co. v. Mitchell (1915), 184 Ind. 383, 391, 392, 110 N.E. 215; Pittsburg, etc. R. Co. v. Hoffman (1914),57 Ind. App. 431, 449, 450, 107 N.E. 315.
By dicta, and by way of argument, but never when used in an instruction, "substantial evidence" and the word "substantial" have been defined as set forth in the opinion, but they have also been given many other definitions. Among which I note "essential", "real" "solid", "true", "complete", "valuable", "important", "genuine", "certain", "absolute", "sole", "a considerable amount", "fundamental". The above definitions are taken from "Words and Phrases". A jury, being composed of laymen would probably know only of the dictionary definitions. From the New Standard Dictionary I gather among others, the following definitions: "solid", "strong", "of real worth and importance", "valuable", "considerable and sure", "essential", "material", "fundamental", "that which is of essential value or worth". From Webster's New International, I find the following definitions: "existing as a substance", "important", "essential", *Page 102 "having good substance", "considerable in amount", "large", "plentiful", "abundant", "solidly based".
In this case the jury was left with the duty of using its own knowledge of the meaning of "substantial" or "substantial evidence". Under the instruction complained of, the jury was justified in believing the plaintiff must prove the material averments of his complaint and their application to his injuries by evidence that is solid and strong, of real worth and importance, considerable and sure, of essential worth and value, considerable in amount, plentiful, absolute, and abundant. Such proof has never before been required in a civil case in Indiana, nor elsewhere, so far as I can find. I do not think it can be a true statement of the law.
As said in Garfield v. State (1881), 74 Ind. 60, at pages 63, 64:
"It is not every statement of the law found in a text book or opinion of a judge, however well and accurately put, which can properly be embodied in an instruction. The processes of reasoning by which a conclusion is reached, if well made, are appropriate to be found in either text or opinion, but rarely, if ever, is it proper to deliver such reasoning to a jury in the form of instructions, . . . the teachings of experience on questions of fact are not, however, doctrines of law, which may be announced as such from the bench, nor yet are they matters of proof to be shown as other facts in the case. They may well enter into the arguments of attorneys, . . ., but the jury, not the judge, is the arbiter of such contentions, as of all the questions of fact. . . ."
See also Finch v. Bergins (1883), 89 Ind. 360, 362, 363.
However, the court not only gave the jury appellee's mandatory Instruction 11, but it also gave appellee's *Page 103 tendered Instruction 4, which ends with this sentence: "The rights of the parties should be determined upon the evidence introduced in the case, and upon the instructions given to the jury, which is the law and the only law to guide you in your deliberations, . . ." While this may be a correct instruction, it undoubtedly compelled the jury to accept erroneous mandatory Instruction 11 as the scales by which appellant's evidence must be weighed.
In the last paragraph of appellee's tendered mandatory Instruction 16, given by the court, the jury was told:
"And if you find from the evidence in this case that the plaintiff was guilty of any contributory negligence whatever, then your verdict should be for the defendant."
In my opinion this is an erroneous statement of the law. The contributory negligence which will prevent a recovery by plaintiff must be such as proximately contributed to the injury complained of. Indiana Service Corp. v. Schafer (1936),101 Ind. App. 294, 299, 199 N.E. 158, and cases there cited. LakeShore, etc., R. Co. v. Johnson (1909), 172 Ind. 548, 550, 551, 88 N.E. 849. This instruction carries forward and accentuates the error contained in Instruction 11, and since it too is erroneous, it can not be cured by other instructions given.
In appellee's tendered mandatory Instruction 17 given by the court, among other things the jury was told:
"The slightest negligence upon the part of the plaintiff which proximately contributed to the injury complained of, is sufficient to defeat the plaintiff's right to recover in this cause.
"The court instructs you, therefore, that if you find from a fair preponderance of the evidence that the plaintiff was guilty of negligence in any degree *Page 104 which negligence proximately contributed to the injury complained of, then your verdict should be for the defendant."
By this instruction the "substantial evidence" rule set forth in appellee's Instruction 11 as the rule by which appellant's evidence must be weighed, is made wholly inapplicable to the evidence of appellee on the highly controversial subject of contributory negligence — where appellee carried the burden of proof — and this burden is permitted to be discharged by making proof by a "fair preponderance of the evidence." In this connection the query is suggested: Is it the law in Indiana that in any civil case a plaintiff may be required to prove each of the material averments of his complaint by what the jury may determine to be "substantial evidence", and that a defendant is required to prove his affirmative defenses by only a fair preponderance of the evidence? Is it not the law in such a case that each of the parties is required to sustain the issues, where they carry the burden, by a fair preponderance of the evidence, only? Heiny, Admrx. v. Pennsylvania R. Co. (1942),221 Ind. 367, 373, 47 N.E.2d 145, where in a grade crossing case this court said:
"We hold, therefore, that the decedent's conduct, like that of appellee's, is to be measured by the standard of ordinary care."
Appellee's tendered Instruction 30, given by the court, among other things contained a paragraph as follows:
"In this case, plaintiff has testified that he looked for an approaching train. I instruct you that plaintiff's evidence should be given the weight to which it is entitled, but that it is not conclusive on that question, and should be considered in connection with all the evidence bearing thereon." (My italics.) *Page 105
It is error for the trial court to tell the jury what any witness testified to.
It is likewise an invasion of the province of the jury for the trial court to tell the jury what weight should be given to the evidence of any witness. Whether the evidence of the plaintiff is conclusive on the subject of whether he looked for an approaching train, is solely for the jury to determine. It was an invasion of the province of the jury for the trial court to instruct it that such evidence is not conclusive. The Union Mutual Life InsuranceCo. v. Buchanan (1884), 100 Ind. 63, where Judge Elliott speaking for the court at page 73, said:
"It is not for the court, in ruling upon evidence, or in framing instructions, to determine the probative force of evidence."
See also: Muncie Pulp Co. v. Keesling (1906), 166 Ind. 479, 488, 489, 76 N.E. 1002; Indianapolis St. R. Co. v. Taylor (1904), 164 Ind. 155, 160, 161, 72 N.E. 1045; Fassnacht v. TheEmsing Gagen Company (1897), 18 Ind. App. 80, 85, 46 N.E. 45, 47 N.E. 480; Warner Gear Co. v. DePeugh (1919),70 Ind. App. 264, 265, 123 N.E. 363.
This error is likewise an enlargement of the error contained in Instruction 11. Unruh v. State ex rel Baum (1885),105 Ind. 117, 120, 121, 122, 123, 4 N.E. 453. Its erroneous effect could not be avoided by any additional instruction that could have been given.
In a case like this, negligence, whether on the part of the defendant or the plaintiff is a mixed question of law and fact. The facts when disputed are for the jury alone to determine underappropriate instructions by the court as to the law. Gagg v.Vetter (1872), 41 Ind. 228, 254; Pennsylvania R.R. Co. v.Hemmer, *Page 106 Admrx. (1933), 206 Ind. 311, 316, 338 et seq., 186 N.E. 285, 189 N.E. 137; Bartley v. Chicago E.I.R. Co. (1939),216 Ind. 512, 524, 525, 24 N.E.2d 405; Central Indiana R. Co. v.Wishard (1916), 186 Ind. 262, 269, 114 N.E. 970; Heiny Admrx. v. Pennsylvania R. Co., supra, New York Central R. Co. v.Powell (1943), 221 Ind. 321, 331, 47 N.E. 615; The Wabash, St.I. Pac. Ry. Co. v. Locke. Admr., 112 Ind. 404, 421, 422, 14 N.E. 391.
Appellee's Instruction 31, given by the court, closed with this statement:
". . . but no juror should agree upon a verdict unless he is convinced it is correct, and unless it is a verdict which his conscience approves, and which such juror under his oath after full consideration believes to be right."
This is an erroneous statement of the law and an augmentation of erroneous Instruction 11. The mind of a juror may be reasonably satisfied of a given fact or a given state of facts, and yet not be certain of it, or free from doubt in respect of it. 20 Am. Jur. § 1250 Evidence p. 1101 N. 5; Alabama Etc. R.Co. v. Hill (1890), 93 Ala. 514, 30 Am. St. 65, 77; Davis v.Guarnieri, supra; The Indianapolis, Peru and Chicago R. Co. v.Collingwood, supra; 32 C.J.S. § 1021 Evidence p. 1051.
Since appellee's Instruction 11 is clearly erroneous and clearly relates to a material issue in the case, viz: Whether appellee was guilty of the negligence charged, it will be presumed that it was harmful, and such presumption must prevail, unless it affirmatively appears from the record, that it was not prejudicial to appellant. Indiana, Etc., Light Co. v.Armstrong (1923), 79 Ind. App. 486, 489, 138 N.E. 830, and cases there cited. Cleveland, Etc., R. Co. v. Case (1910),174 Ind. 369, *Page 107 376, 378, 379, 91 N.E. 238, and cases there cited. And the burden is upon appellee, the party seeking to avoid such presumption, to show by the record, that the error was not prejudicial. Indiana,Etc., Light Co. v. Armstrong, supra. When such an instruction is given it can not be cured by others which state the rule correctly, because, every time the court tells the jury in other instructions what the plaintiff is required to prove, the jurors, if obedient to their oath, are bound to observe that this means proof by "substantial evidence" which, they would be justified in believing, means far more than a fair preponderance of evidence.Martin v. Lilly (1918), 188 Ind. 139, 144, 121 N.E. 443. Where an erroneous instruction is given relating to a material issue in the case, it can not be aided or avoided by another instruction correctly stating the law. The harmful effect of the erroneous instruction can be avoided only by its withdrawal.Indiana, Etc., Light Co. v. Armstrong, supra, at pages 489, 490; Martin v. Lilly, supra, page 144; Pawlisch v. Atkins (1932), 96 Ind. App. 132, 139, 182 N.E. 636; Louisville, Etc.,Traction Co. v. Korbe (1910), 175 Ind. 450, 453, 456, 457, 93 N.E. 5, 94 N.E. 768.
For the reasons given the judgment should be reversed.
EMMERT, J. — Concurring.
NOTE. — Reported in 71 N.E.2d 569.