I concur in the conclusion reached in this case; but I am not satisfied with the manner in which the question of imputed negligence is treated, and cannot agree that it "was one of law for the court, and not a question of contributory negligence to be left to the jury as a question of fact." The essential facts are stated in the opinion of the court.
In Black's Law Dictionary (2d Ed.) 810, it is said:
"Contributory negligence, when set up as a defense to an action for injuries alleged to have been caused by the defendant's negligence, means any want of ordinary care on the part of the person injured (or on the part of another whose negligence is imputable to him), which combined and concurred with the defendant's negligence, and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred. Railroad Co. v. Young,153 Ind. 163, 54 N.E. 791; Dell v. Glass Co., 169 Pa. 549, 32 A. 601; Barton v. Railroad Co., 52 Mo. 253, 14 Am. Rep. 418; PlantInv. Co. v. Cook, 74 Fed. 503, 20 C. C. A. 625; *Page 102 McLaughlin v. Electric Light Co., 100 Ky. 173, 37 S.W. 851, 34 L. R. A. 812; Riley v. Railway Co., 27 W. Va. 164."
If the negligence of a third party was such an independent intervening cause as to prevent the negligence of a defendant from being regarded a proximate cause of plaintiff's injuries, there would be no occasion, of course, to impute such third party's negligence to the plaintiff to prevent his recovery, as there would be an absence of actionable negligence on the part of the defendant; and it is only where the negligence of a third party is contributory that the question of imputing it to a plaintiff can arise; when imputed to a plaintiff, such negligence becomes his own contributory negligence, of course. Imputed negligence is not a distinct and independent defense in any case, but is a feature and part of the defense of contributory negligence as shown by the above quotation. The question of imputed negligence is foreign to any issue in this case, and ought not to have been discussed unless involved in the defense of contributory negligence, which is relied upon by the defendant for relief against its actionable negligence; and the treatment of this question, in the opinion of the court, shows beyond question that it is involved in and arises out of this defense.
The defense of contributory negligence cannot arise, of course, in any case unless the defendant has been guilty of actionable negligence, that is, negligence which, but for such defense, would render it liable for damages to the plaintiff (St. Louis S. F. R. Co. v. Long, 41 Okla. 177, 137 P. 1156, Ann. Cas. 1915C, 432); but when a defendant pleads this defense in a case where the legal effect of its existence would defeat the action, and there *Page 103 is evidence of actionable negligence on the part of the defendant, the court should leave the whole question of the existence of contributory negligence, including the question of imputed contributory negligence, to the jury.
Section 6, art. 25 (Williams', sec. 355) of the Constitution of Oklahoma, reads:
"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."
This provision of our Constitution was evidently intended to effect some change in the pre-existing law, or in what would otherwise be the law of this state; and, as no such provision was necessary to make all questions of fact in such defenses questions to be left to the jury, it seems too obvious to admit of extended discussion that the intent was to convert into questions of fact, to be determined by the jury, what otherwise had been, or would be, in this state questions of law for the judge. Without this provision in our Constitution, whenever, as a matter of law, the evidence was conclusive that the plaintiff had been guilty of contributory negligence (whether directly or by imputation) or whenever, as a matter of law, there was no evidence or not sufficient evidence of such negligence, or any essential element thereof, to sustain this defense, the judge, with authority, might so direct the jury; but not so under this provision of our Constitution. If this provision of our Constitution means less than this, it means practically nothing; and, if the opinion of the majority of my Associates, which treats a question as to an element of the defense of contributory negligence in this case as a question of law just as if there were no such constitutional provision, is allowed to stand, its logical effect will be to strike down this provision of our Constitution *Page 104 or, at least, to leave it merely declaratory of what was theretofore and would still be the law without it. In this, this decision is in conflict with all past decisions of this court touching this question. It must be clear from this provision of the Constitution that the defense of contributory negligence has been stripped of all those legal presumptions and conclusions formerly indulged and drawn by courts and reduced to a question of fact for the jury. See St. Louis S.F. R. Co. v. Long, supra.
Imputed negligence, like every other element of contributory negligence, existed in fact before it had, and independent of, legal sanction; and the effect of this provision of our Constitution upon its elemental character is to leave it where the law found it, that is, a question of fact. It must be obvious that, under some circumstances, the negligence of one party may be imputable to another as a matter of fact, wholly independent of any question of legal sanction or effect; and, under our Constitution, as formerly, a plaintiff may, in fact, be guilty of contributory negligence, either directly or through another whose negligence is in fact imputed to him, with the legal effect that it defeats his right to recover; but the whole question as to whether he is so guilty is one of fact for the jury.
In St. Louis S. F. R. Co. v. Hart, 45 Okla. 659,146 P. 436, in discussing this section of the Constitution, it is said:
"It is obvious, however, that this section does not contemplate that a plaintiff, seeking damages for personal injuries, is entitled to recover regardless of the question of fault or negligence on his part. We take it that, if the evidence conclusively shows that such an one deliberately walked in front of a moving train with suicidal intent and was killed (injured), it would be the duty of the courts, *Page 105 trial or appellate, to set aside a verdict in his favor and grant a new trial."
The opinion in that case does not predicate the statement quoted upon any power of the court to pass upon the existence or sufficiency of evidence of contributory negligence, but is based upon the view that such a state of facts negatives the existence of actionable negligence on the part of the defendant, as will clearly appear from the following additional excerpt from the same:
"If the plaintiff permitted a train approaching at that gate to run him down and injure him, there being nothing to prevent him from getting out of the way, the court probably would be justified in reversing the verdict in his favor and remanding the cause for a new trial, upon the grounds that there was no evidence reasonably tending to support the same; but, having arrived at the conclusion that there was sufficient evidence of negligence on the part of the defendant to take the case to the jury on that question, it would seem to follow that it was for the jury to say whether the testimony of the plaintiff as to getting his foot caught between the plank and rail was sufficient explanation of why he did not retire to a place of safety, after he discovered that the train was backing toward him, to absolve him from the charge of contributory negligence. As we have said before, in this jurisdiction the question of contributory negligence is always for the jury. At most, the only function of the court is to define for the jury the meaning of the term 'contributory negligence,' as used in section 6, supra, and instruct them that it is always a question of fact for their determination. In no event is the court authorized to direct a verdict or sustain a demurrer to the evidence, upon the ground that it conclusively appears that the plaintiff is guilty of contributory negligence as a matter of law."
The earlier case of St. Louis S. F. R. Co. v. Long, supra, is to the same effect. If, as is undoubtedly true, *Page 106 "in no event is the court authorized to direct a verdict or sustain a demurrer to the evidence upon the ground that it conclusively appears that the plaintiff is guilty of contributory negligence as a matter of law," it must necessarily follow that in no event is the court authorized to direct a verdict or sustain a demurrer to the evidence, upon the ground that it conclusively appears that the plaintiff is not guilty of contributory negligence as a matter of law — the constitutional rule must be allowed to work both ways and be equally available to either of the parties. If trial courts would confine their instructions for the guidance of juries in such cases to the question of actionable negligence on the part of defendants, instead of invading the province of the jury in respect to the question of contributory negligence, much danger of confusion and much risk of error would be avoided; and if this court would abstain from discussing when and what evidence does, and when and what does not, prove or tend to prove contributory negligence, and confine itself to the field left to it by the constitutional provision under consideration, a clearer understanding of the law in this regard would result. See Gelruth v. Charles T. DerrConstruction Co., 51 Okla. 103, 151 P. 875.
It may be thought at first blush that this view would lead to the conclusion that, where the undisputed evidence shows actionable negligence on the part of a defendant, without any evidence whatever of contributory negligence on the part of the plaintiff, a trial court would be without power to set aside a verdict against plaintiff's right to recover and grant him a new trial; but no such result would ordinarily follow. It may also be thought at first blush that this view would lead to the conclusion that, where the undisputed evidence shows contributory negligence on the *Page 107 part of a plaintiff, the court would be without power to set aside a verdict against defendant and grant him a new trial; but no such result would ordinarily follow. In either such case, such evidence of passion or prejudice would no doubt cause the trial judge to exercise the utmost care to see that, in respect to the primary question of actionable negligence, the verdict is justified; and, if there is no ground for setting the same aside, as against the evidence or the weight thereof upon this primary question, as where the pleadings or uncontroverted evidence left no question but that of contributory negligence to be determined by the jury, such a manifestly wrong verdict would ordinarily, at least, be attended by facts and circumstances which would bring the case within the discretionary power of the court to set aside the verdict and grant a new trial, upon the ground of "irregularities" or "misconduct" on the part of the jury within the meaning of the first or second subdivision of section 4196, Statutes 1893 (sec. 5033, Rev. Laws 1910), specifying causes for which a new trial may be granted. If, for instance, the jurors, upon examination as to their qualifications, had denied that they had any bias or prejudice, such a verdict, unsupported by any evidence or contrary to all the evidence, might tend to show that they had wrongfully qualified and were guilty of misconduct in this respect, and might entitle the party against whom the verdict was rendered to a new trial; and such bias or prejudice would ordinarily be referable to and tend to sustain some proposition under which the trial court might, in the exercise of its wide discretion, grant a new trial under the statutory causes therefor. See Soper v.Medberry, 24 Kan. 128; Kelley v. Penn. R. Co. (C. C.) 33 Fed. 857; Bayliss v. Travelers' Ins. Co., 113 U.S. 320, 5 Sup. Ct. 494, 28 L.Ed. 989; 9 Fed. Stat. Ann. 349, 350. *Page 108 This, of course, is upon the assumption that no other ground for granting a new trial appeared.
It does not follow that, because both parties are entitled to a jury verdict upon the defense of contributory negligence and every part of the same, it is not within the power of the court to set aside such a palpably wrong finding of the jury as to the existence or nonexistence of contributory negligence, when not fairly reached, as the mere granting of a new trial, and thus sending the case to another jury, is not a denial to either party of his constitutional right to have a jury determine the existence or nonexistence of this defense without undue interference from any court (Devine v. St. Louis, 257 Mo. 470, 165 S.W. 1014, 51 L. R. A. [N. S.] 860); and this provision of our Constitution was not intended and should not be construed to deprive the courts of general jurisdiction of their inherent power to grant new trials for statutory causes known to the common law which were intended to secure a fair verdict. As to this power in general, see 29 Cyc. 722; 2 Thompson on Trials (2d Ed.) sec. 3711, p. 1975, and notes; vol. 4, pt. 1, Minor's Institutes, 836, 837; 2 Jones' Blackstone, secs. 510, 513, pp. 1998-2006; Arkansas Valley Land CattleCo. v. Mann, 130 U.S. 69, 9 Sup. Ct. 458, 32 L.Ed. 854; Clarkv. Great Northern R. Co., 37 Wn. 537, 79 P. 1108, 2 Ann. Cas. 760, and notes thereto; McMahon v. Rhode Island Co.,32 R.I. 237, 78 A. 1012, Ann. Cas. 1912d 1229, and notes. Courts, in order to secure fair trials, often grant new trials where there is nothing to be determined except questions of fact within the exclusive province of the jury, and where the question must ultimately be determined by a jury; and the fact that it has long been the rule that the judge must ultimately yield to the jury in such cases *Page 109 is shown by the following statement in 2 Jones' Blackstone, 510, p. 1998 (287):
"If two juries agree in the same or a similar verdict, a third trial is seldom awarded; for the law will not readily suppose that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones."
And in Devine v. City of St. Louis, 257 Mo. 470, 165 S.W. 1014, 51 L. R. A. (N. S.) 860, it is held:
"The constitutional right to trial by jury is not infringed by the granting by the court of a new trial for the award of excessive damages by the jury."
This is true although the jury must ultimately determine the amount of damages. But if, in any case, the court has no such power to relieve from a finding unsupported by any evidence or against sufficient undisputed evidence, such a case is exceedingly improbable; and it may be said that, if the jury would be free to commit absurd errors and return false verdicts not subject to review, they are no more free to err than are the courts in respect to the ultimate powers intrusted to them. In any event, it seems very clear under this section of our Constitution that the entire defense of contributory negligence is one of fact, and that both parties are entitled to have the same and every part thereof determined by a jury, without any further instruction from the court than is permitted by the two cases first herein cited. The whole question of the existence or nonexistence of contributory negligence is for the jury, and their conclusion upon it, when fairly reached, is not re-examinable — their finding is conclusive. See 9 Fed. Stats. Ann. 349.
It follows from the foregoing views that, in my opinion, the court erred in instructing the jury to the effect that the negligence, if any, of the driver of the automobile *Page 110 in which Fred Bell, deceased, was riding at the time of the accident resulting in his death could not be imputed to the latter, notwithstanding such instruction appears to have been absolutely true, as this was an unwarranted invasion by the court of the exclusive province of the jury to determine the truth of the same — the instruction, being unauthorized, was impertinent though appearing to us to be true. And, although this instruction appears to us to have been true, and the jury would no doubt have so found without it, the error in my opinion probably constitutes a substantial violation of a constitutional right within the meaning of section 6005, Rev. Laws 1910, which reads:
"No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury * * * unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of * * * constitutes a substantial violation of a constitutional * * * right."
But, although I have more doubts as to this, I am inclined to think that it does not follow that this case should be reversed on account of this error, as the error appears to have been invited by the defendant when, in its sixth requested instruction, it asks the court to invade the province of the jury in respect to the defense of contributory negligence and instruct it that, under the hypothetical case therein stated, the negligence of the driver of the automobile, in which Fred Bell, deceased, was riding at the time of the accident resulting in his death, should be imputed to the latter, and that plaintiff's right to recover should be denied. That a judgment will not be reversed on account of an error invited by the party asking reversal is well settled by the opinions of this court. Standard *Page 111 Marine Insurance Co. v. Trader's Compress Co., 46 Okla. 356,148 P. 1019, Wallace v. Duke, 44 Okla. 124, 142 P. 308;Brissey v. Trotter, 34 Okla. 445, 125 P. 1119; Ardmore Oil Milling Co. v. Robinson, 29 Okla. 79, 116 P. 191; St. Louis S. F. R. Co. v. Long, supra.
It is true the defendant did not ask the instruction given, that asked by it being diametrically opposed to the one given, but it did ask the court to instruct upon the question of imputed negligence; and the error in the instruction given is in instructing at all upon this question.
I do not believe that such an error so invited would warrant a reversal of this case. *Page 112
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