I dissent. The parties are referred to as they appeared in the court below.
A study of the pleadings, requests for instructions, and instructions given by the court convinces me that the trial judge not only erroneously instructed the jury, but further, that he intended to give one important instruction which, through inadvertance or mistake, he failed to include in his charge. In view of the incomplete charge to the jury, the prevailing members of this court have upheld a verdict that appears to me to be founded on confused and fatally deficient instructions.
This opinion will not establish the law of this state, and I would not file it were it not for the fact that I have hopes it will cause the bench and bar to discard an unsatisfactory method of procedure sometimes used in the trial of cases in the district courts. All members of this court agree that this case reached this court with the issues beclouded by uncertainty and confusion, and it is hoped the opinions in this case will prevent repeat performances. It is not intended to be critical of counsel or of the court. It is only intended to call attention to a practice that has been repeatedly condemned by this court. This practice consists of reading pleadings verbatim to the jury for the purpose *Page 396 of framing issues, regardless of whether or not evidence has been presented to sustain the allegations.
It should be noted at the outset that the main opinion dwells at length with the difficulty encountered by a jury when a trial court instructs in the language of the pleadings, while the concurring opinion finds the practice not so offensive. In addition, the two opinions seem in disagreement as to whether or not faulty construction of the elevator shaft was properly submitted to the jury. The differences in the opinions only illustrate the difficulties that must have been encountered by the members of the jury when they attempted to interpret the instructions.
The prevailing members of the court, while not in agreement, concur in upholding the verdict on the three following grounds: (1) That there was sufficient evidence of negligence other than that of the open door to sustain the verdict; (2) even though the court committed error in instructing the jury by reading the pleadings, the error was not prejudicial; and (3) counsel for appellant failed to properly except to the trial court's instructions.
Admittedly, there was sufficient evidence of starting the elevator too soon to present a jury question on this ground of negligence. If this were the only question presented, there would be no dissent from the results. This question is, however, so mixed up with other elements of negligence that segregation is not quite so easy as is indicated in the prevailing opinion.
While much is said in both opinions regarding the allegations of the complaint and the instruction in conformity therewith, the critical allegations are not set forth. I believe to better understand the problem it is well to set forth the allegations of the complaint in respect to defendant's negligence. Plaintiff first alleges that defendant company owed a duty to provide a safe place for the public to ride, but notwithstanding this duty the elevator shaft was so negligently constructed that when the floor of the cage was opposite the floor of the halls, there was an unoccupied space of 4 to 5 inches between the floor of the cage and the door *Page 397 leading into the elevator. Plaintiff next alleges a duty to keep the particular elevator in a proper condition, and alleges a violation of this duty in that for several days prior to the accident, the cage had started with a jerk and that defendant company, by the exercise of ordinary care, should have known the elevator was unfit for use. The next paragraph is quoted herewith:
"That immediately upon said Nora Fowler and her said minor children entering said elevator and without giving said Nora Fowler and her said minor child David John Fowler sufficient time to get completely into said elevator or to turn around and face the door leading into said elevator from the hall and without closing the door so leading from the hall into said elevator the defendant Norma Peterson, acting for and on behalf of the defendant corporation, negligently, suddenly and with a violent jerk started upward the said elevator and as a direct and proximate result of the negligence of the defendant corporation to permit the vacant space of 4 or 5 inches to exist between the floor of said elevator No. 2 and the door leading thereto from the hall and in failing to keep said elevator in proper condition to be used and the negligence of the defendant Norma Peterson, in suddenly and violently starting said elevator without closing the door leading into the hall as herein alleged the said David John Fowler was thrown from the floor of said elevator into the elevator shaft below the floor of said elevator and the said David John Fowler fell to the bottom of the elevator shaft of said building and was thereby immediately killed."
The allegations of the complaint paint the following picture to me. The mother and her minor children entered the elevator, and before sufficient time had elapsed for them to turn around, the elevator was started suddenly and with a jerk of sufficient violence to catapult the boy out through the open door and down the shaft into the bottom of the elevator pit. No difficulty would be encountered had the same pitcure been painted by the witnesses. However, the evidence disclosed that the boy was not thrown out the open door; he was crushed in the cage. The problem in this case arises from the difference in the pictures suggested by the allegations of the pleadings and the picture established by the evidence. There is no similarity. To emphasize wherein I disagree with the prevailing members of the court: *Page 398 The jury was charged as though the pleadings and the proof in support thereof were substantially the same, and permitted to return a verdict on the former, regardless of the variance between the two. This court places its stamp of approval upon such a procedure, and in this I disagree.
Mr. Justice WADE in his prevailing opinion cites cases in which this court has frowned on the practice of reading the pleadings to the jury. Before discussing that practice, I desire to mention another not particularly referred to by him.
In the case of Shields v. Utah Light Traction Company,99 Utah 307, 313, 105 P.2d 347, 350, this court announced the following principle:
"* * * in setting forth the claims of the parties to the jury,only that portion of the pleadings on which evidence had beenintroduced, should be mentioned at all, although the reading of the pleadings to the jury is generally condemned. Randall's Instructions to Juries, § 404; Hammer v. Liberty BakingCompany, 220 Iowa 229, 260 N.W. 720; In re Thompson's Estate,211 Iowa 935, 234 N.W. 841; Welton v. Iowa State HighwayCommission, 211 Iowa 625, 233 N.W. 876, 877; Smith v.Columbus Buggy Co., 40 Utah 580, 123 P. 580." (Italics mine.)
While Mr. Justice Wolfe dissented in part from the above decision, I quote a paragraph from his opinion found at page 321 of 99 Utah, and at page 353 of 105 P.2d:
"Stating to the jury a claim as contained in the pleadingwhen there was no evidence to support it is a more serioustransgression, but in this case I think it could not have beenprejudicial in view of the fact that the court notified the jurythat the language of the pleadings was not evidence but only theclaim as made by the plaintiff. Since there was no evidence to substantiate it and no instruction relating to it, we must assume that the jury did not consider it as evidence and did not take it into consideration. I think the judgment should be affirmed." (Italics mine.)
The court in that case did tell the jury the language of the pleadings was not evidence. Not so in this case. Neither did the court in this action inform the jury that the quoted pleadings were only the claims as made by the plaintiff. *Page 399 Because the instruction which defined the issues in specific terms (Plaintiff's request No. 4) was not given, the issues in this case were only mentioned by the trial judge's quoting the pleadings. In effect, the jurors were given the pleadings and told they could frame the issues of negligence therefrom.
The most difficult question presented by the record is, was there sufficient evidence introduced by the parties to present a jury question on whether or not the elevator door was open when the elevator started? I agree with Mr. Justice WADE that there was insufficient evidence on this question to submit it to the jury. In Mr. Justice Wolfe's concurring opinion, he begs the question, but does set forth that there was some evidence. The expression used,
`that it was a mole-hill against a mountain, when compared to the evidence that it was closed,"
might be well chosen. This does not, however, take care of the possibility that the jury might have accepted the mole-hill in preference to the mountain of evidence. Apparently, counsel for respondent as well as the trial judge concluded there was sufficient evidence to permit the jury to do this, and it does seem most unusual for us to say the trial court erred when he considered there was sufficient evidence, but that the jury was too smart to be misled and could not reasonably have arrived at the same conclusion. It is extremely difficult for judges to determine when there is sufficient evidence produced on an issue to justify its submission to a jury, and members of this court are no exception to this rule. As a matter of fact, the various opinions in this case indicate that this question of the open door was one of those where considerable difficulty was encountered. If it is difficult for us to determine whether there is any or sufficient evidence of this particular negligent act, it must have been most difficult for a juror. Yet the prevailing opinion is founded on the principle that the jury could not have been misled. *Page 400
The prevailing opinion reasons that, regardless of the insufficiency of the evidence on the question of the open door, the starting of the elevator too quickly or with a jerk was the proximate cause of the boy's death; and these having been alleged, there was no prejudice in submitting the other issue of negligence, as it, in effect, played no part in the cause and effect. It was, so to speak, an unimportant or incidental event that occurred after the primary negligence had put the forces into effect. Concretely, according to my understanding of the opinion, whether or not the boy was thrown out of the door and fell down the shaft or was killed by being crushed by the bar makes no difference, as the time and manner of starting the elevator was the negligence. This, of course, overlooks the important element that the jury could have found the appellants negligent if the elevator was not started suddenly with a jerk or not started too quickly, provided it was started at all with the door open. When people are fairly well crowded in an elevator, as was the case here, it may be the grossest kind of negligence to start the car with the door to the hall open, even though the elevator were to make the smoothest possible start and the occupants were to be all facing the door. The evidence in this case shows the elevator was nearly filled to capacity, and the little boy was nearest the door. Under these facts, the writer of this opinion would hold the defendants negligent though the parties had completely turned around, though they had time to adjust themselves, and though the elevator started with a smooth and an even start, provided the door to the hallway was open and the boy fell out the door. Permitting an open space to exist through which the boy might fall into the pit would be negligence. It is not uncommon to be thrown off balance by the ordinary upward motion of the cage, and many of the ordinary safety features are solely for the purpose of preventing the car from moving before the door is closed.
While the prevailing and concurring opinions are not in agreement on the question of whether or not it is error to read the pleadings, both agree there was no prejudice in this *Page 401 case. There are two instructions given by the court which the prevailing opinion indicates are sufficient to satisfactorily instruct the jury in this case. The first one is the one criticized by the prevailing opinion because the instruction was, in effect, a reading to the jury of the complaint and answer. The criticism of this procedure by Mr. Justice Wade is wholesome, and trial judges would do well to follow the practice of framing the issues on only those allegations supported by the evidence. It is all too frequently that the pleader puts in the complaint every possible ground of negligence. On many of the trials, the evidence fails to establish some or all of the grounds alleged, and the jury should not be permitted to speculate on those alleged but not sustained by any evidence. While, as Mr. Justice Wolfe points out in his opinion, this may be a simplified way of expressing to the jury the issues involved, this method should certainly not be used unless the allegations that are not supported by some substantial evidence are stricken and are withheld from the jury's consideration. If that is not done, the pleadings might just as well be sent to the jury room for the jury to determine the issue.
In order to determine the issues, if any, presented to the jury, two instructions must be considered together. The first (the court's instruction No. 1) quoted generally the allegations of the complaint, including the paragraph quoted verbatim earlier in this opinion. This is followed by the allegations generally, of the answer. This instruction, together with the court's instruction No. 4, furnish the only guide posts for the jury to follow on the question of negligence. Instruction No. 4 reads, in part:
"You are instructed that in order to recover in this action, the burden is on the plaintiff to prove by a preponderance of the evidence that the death of David John Fowler was proximately caused by the negligence of the defendants, and that said negligence consisted of one or more of the acts or omissions on the part of the defendants alleged in the complaint as negligence. * * *"
As I interpret the two instructions, the jury was informed of plaintiff's pleading, and then told that in order to recover, *Page 402 plaintiff must establish by a preponderance of the evidence one or more of the acts or omissions on the part of the defendants alleged in the complaint. This, of course, includes all grounds alleged in the complaint whether or not there is evidence to sustain them. I see no escape from the conclusion that under the instructions given, the jury could have reasonably based its verdict solely on the alleged ground that the elevator door was open.
While admittedly the complaint is subject to different constructions, I believe an acceptable test is to take plaintiff's own construction of the pleading. This can be determined by a reference to plaintiff's request for instruction No. 4. This is the instruction which the trial court evidently intended to give, as it is marked "given"; but the record conclusively shows otherwise. I am assuming that plaintiff made this request pursuant to his interpretation of his own pleading and pursuant to a belief that the evidence was sufficient to present a jury question on the three separate grounds of negligence indicated. Plaintiff's request for instruction No. 4 was as follows:
"You are further instructed that if you find from a preponderance of the evidence that on or about April 27, 1945, Nora Fowler, the mother of the deceased child, David John Fowler, entered the elevator referred to in the testimony with said child for the purpose of being transported to one of the upper floors of the Medical Arts Building there to have treated the teeth of one of her minor children who accompanied her, and you also find by a preponderance of the evidence that Norma Peterson was negligent in one or more of the following particulars: (a) In not giving the mother Nora Fowler, and her said minor child, David John Fowler, sufficient time to get completely into said elevator and to turn around and face the door leading into said elevator from the hall; (b) or in failing to completely close the door leading into said elevator from the hall; (c) or in starting said elevator upward with a violent jerk and if you further find that as a proximate result of one or more of such negligent acts, if any, the child David John Fowler was killed, then in such case you will find for the plaintiff and against both of the defendants, Medical Arts Building Company, a corporation, and Norma Peterson."
It will be observed that counsel for plaintiff specifically sets out three separate and distinct grounds of negligence *Page 403 on the part of defendants. These include the specific ground of failure to close the door. If then, plaintiff's counsel was of the opinion that there was a jury question on the open door, and the trial judge's notation "given" on the request for instruction indicated he was of the same opinion, then I deem it quite unusual for this court to say that no reasonable juror could have arrived at the same conclusion.
While I am mindful of the constitutional provision that this court shall not reverse a jury's verdict when no prejudice has resulted, I am also mindful of the difficulties encountered when this court assumes to say the jury could not have been misled. I cannot, of course, say the jury based its verdict in this case on the fact that the door was open. All I can say is that the trial court authorized the members to return a verdict on that ground, and while six members of the jury found against the defendants, I doubt that the prevailing members of this court can say that not one of these jurors could have based his verdict upon the fact that the door was open. The trial judge specifically referred to this ground when he read the first instruction to the jury, and he must have concluded a reasonable juror could so find. To hold that the defendants were not prejudiced thereby would be to charge a juror with being unreasonable if he based his verdict on a ground of negligence that the trial judge had informed him was in issue.
When this court attempts to determine whether or not prejudice resulted from the giving of an erroneous instruction, it cannot re-try the case, determine the credibility of witnesses, or substitute its judgment for the verdict of the jury; it can only search the record and determine that the issue and evidence are so closely related to the subject matter of the instruction that a reasonable jury could be mislead or confused to the detriment of a party to the action. In a close case, such decision is one fraught with difficulty, while in an action wherein the evidence is clear and convincing, a determination may be made without interfering with the verdict arrived at by the jury. As was said by Mr. Justice Wolfe, in his support of a verdict in *Page 404 the case of State v. Rasmussen, 92 Utah 357, 375,68 P.2d 176, 184:
"* * * What may be prejudicial on a close case may not be in a case where the evidence is fairly clear. If we take a case where there is a mountain of evidence for one side and a molehill of evidence for the other side, an instruction, which in a close case would likely puzzle the jury or influence them in such case may not be prejudicial, because, regardless of instructions it would be very unlikely that they would decide in favor of the molehill.
"Prejudice cannot be judged purely intrinsically on the claimed error, but in view of the whole case. We can hardly consider the jurors as if they were a body of highly trained lawyers, wool combing the evidence and instructions for highly technical points upon which to determine their decision. * * *"
That the instruction was prejudicial in the case at bar seems to me to be apparent. The issue was pleaded, the statement of Mrs. Fowler was impressive even though obtained with some degree of difficulty, counsel for appellant in his statement to the jury argued it as one of the grounds for recovery, the record is barren of substantial evidence to sustain it, and the court instructed on it. No one could read the record and determine that it was not one of the very issues of negligence upon which the plaintiff was attempting to recover. It started out as the underlying issue of plaintiff's cause of action, and at no time was it abandoned. On the contrary, it was stressed throughout the trial and was so blended in with other issues, evidence and instructions, as to be inseparable. It was not necessary for the jurors to comb through the record to find the prejudicial evidence. All they needed to remember, was the statement of Mrs. Fowler that the elevator door was open.
This court in the case of Jensen v. Utah Ry. Co., 72 Utah 366,400, 270 P. 349, 361, treated the subject of prejudice in a civil action, and announced the following principle:
"Lastly, the respondent urges that, because of our statute (Section 6622, Comp. Laws Utah, 1917) providing that a judgment shall not be reversed for errors or defects which do not affect the substantial rights of the parties, and since the burden is on the appellant, not only to show error, but also prejudice affecting some substantial right, *Page 405 he ought not to be permitted to open only such portion of the record as he chooses and close the balance of it to the respondent. Certainly not. The burden, of course, is on the appellant to show, not only error, but prejudicial effect as well. But how may he show that? It often has been broadly stated that all errors are presumed to be prejudicial. We think the better rule is that not all committed errors in the trial of a case are presumptively or prima facie prejudicial, for some committed errors are merely abstract, or on their face immaterial, or otherwise are not in and of themselves calculated to do harm. Still the party against whom the error was committed may show by the record that it resulted to his prejudice in some substantial right."
The submission of the issue of the open door to the jury permitted the jury to find against the defendants on a theory without evidence to sustain it. I doubt there would be any difficulty encountered by the members of this court if the only issue involved was whether or not the elevator was started while the door was open. Unquestionably the evidence would not sustain a verdict on this ground alone, and I cannot conclude from this record whether or not the jury did base its decision on this ground of negligence. To permit a jury to render a general verdict, including issues with or without evidence to sustain them, so intermingles the good with the bad it is impossible to determine whether the verdict should be sustained because the jury selected the proper issue, or the verdict should be reversed because the jury chose the improper one. As far as the jury was concerned, it was advised by the court that either would be proper, and to assume the jury made the proper segregation when the court itself failed to do so is making an assumption not justified by this record.
Some of the other cases decided by this court dealing with prejudice will be referred to. Mr. Chief Justice Elias Hansen in the case of Woodward v. Spring Canyon Coal Company, 90 Utah 578,592, 63 P.2d 267, 273, stated:
"* * * It is the settled law in this jurisdiction that negligence must be both charged and proved. A failure of either is fatal. Here there was a failure of both. It is equally well established that it is prejudicial error to permit the jury to find a verdict based upon *Page 406 either negligence not charged or negligence charged but not shown. * * *" (Citing cases.)
This court, in the case of State v. Johnson, 76 Utah 84, 9, 287 P. 909, 911, announced the rule to be as follows:
"* * * The question presented is as to whether error was committed in submitting to the jury a material issue upon which it is claimed there was sufficient evidence to support it, and, if so, whether the error was prejudicial. If in a civil case where several acts of negligence are charged, each constituting actionable negligence, and the evidence is insufficient as to one of such acts, but against objections nevertheless is submitted to the jury and a general verdict rendered in favor of the plaintiff, hardly any one would contend that no prejudice resulted on the ground that the evidence was sufficient to sustain the verdict on the other alleged acts. * * *"
In the case of Wilcock et al. v. Baker, 65 Utah 435, 439,238 P. 253, 255, this court had previously passed on this question:
"* * * We are of opinion that the pleadings are sufficiently broad to include the issue of fact submitted. But not only must an instruction be within the issues joined and made by the pleadings, but it must likewise have as a basis some testimony to support a finding by the jury upon the issue of fact submitted by the instruction. Davis v. Midvale City, 56 Utah 1, 189 P. 74; [First Nat.] Bank v. Taylor, 38 Utah 516, 114 P. 529;Sagers v. International Smelting Co., 50 Utah 423,168 P. 105; Lochhead v. Jensen, 42 Utah 99, 129 P. 347."
It being my opinion that the instructions were incomplete, confusing, erroneous, and prejudicial, I now pass to answer the contention made in both opinions that no proper exceptions were taken to the instructions. I first desire to point out that I have no serious dispute with the rule that when an instruction is given which is erroneous in part and correct in part, that an exception to the whole instruction is not sufficient. That unless the whole instruction is bad, the exception is not well taken.
The difficulty in this case is not settled by this rule. This for the reason that both instructions are correct and neither *Page 407 is divisible into good and bad parts. Notice that the first instruction merely tells the jury that plaintiff alleges the following cause of action, and that defendant admits certain of the allegations, denies other, and pleads the affirmative defense of contributory negligence. There is no part of that instruction that incorrectly states the law. The plaintiff did so plead, and the defendant did so answer. Counsel for appellants took the only course open to him; he did except because the court failed to frame the issues for the jury, and because the instruction contained an almost verbatim restatement of the complaint. If the court is permitted to state what the plaintiff pleads, I can hardly reason out that counsel for the defendants is at fault because he failed to complain that the court was accurate in stating what the plaintiff alleged, and that to correct the instruction the court should be inaccurate. In my opinion, if the court elects to instruct the jury in the words of the pleadings, the judge should either direct the jury's attention to the fact that the pleadings do not frame the issues and give other appropriate instructions on the issues, or make certain that there is sufficient evidence to make a jury question on all the pleaded issues. There is no appropriate manner of excepting to an instruction that is legally correct.
The same reason applies to instruction No. 4, as given. This was the burden of proof instruction, and is correct in every detail. Certainly, before the plaintiff could recover he must have established by a preponderance of evidence one or more of the acts of negligence alleged in the complaint. This is a cardinal rule of law. It confines the jury to the framework of the complaint, and prohibits a finding of negligence on acts not within the language of the pleadings.
Had an instruction been given by the trial court defining the issues of negligence, as requested by plaintiff (and as quoted hereinabove), then we might place on counsel the burden of calling the court's attention to the fact that part of the instruction was erroneous. This could have readily been done had the court, as a part of its instruction, informed the jury that if it found by a preponderance of the *Page 408 evidence that defendants were negligent in starting the car with the door open, it should return a verdict in favor of the defendants. Such an instruction is quite different from one which advises what the pleader alleges, or one which announces the burden of proof.
Out of this case there should come a clear-cut holding as to the duties of the trial court and counsel in regard to the responsibility for properly instructing the jury. Apparently the majority of this court place all the responsibility for the failure of the trial court to properly instruct in this case, on counsel for defendants, because of their failure to properly except to incomplete instructions. In my opinion, the burden to see that a jury is properly instructed should be placed on the court and counsel for both parties, and not solely on one party. Certainly the court has some duty to frame the issues and if a trial judge elects to read the pleadings rather than state the issues in simple and concise language, he should follow the evidence closely enough to see he is not passing to the jury for consideration a pleaded issue of negligence which is not supported by any substantial evidence. Subsection 4, 104-24-14, U.C.A. 1943, places on the trial judge the responsibility of instructing the jury on the law applicable to the case. To present issues upon which there is no evidence is not in keeping with this requirement. I believe the modern trend of procedure is toward the elimination of the necessity of taking exceptions, as, for the most part, such an act is merely a futile gesture. In most of the trials, under our procedure, exceptions to instructions are taken after the jury has retired and after the evidence or lack of evidence on the principal issues has been thoroughly discussed on motion for non-suit and directed verdict. While I am not desirous of overturning sound and well-established rules of procedure, I am of the opinion that we should not take a backward step and extend the doctrine of "failure to except" far beyond the scope of the adjudicated cases. To do so would cause this court to revert to the old concept that he who fails to do that which *Page 409 is futile has not enlightened the court and therefore cannot complain.
The purpose of taking an exception to part of an instruction is to point out to the trial judge that portion which is incorrect and does not properly state the law. Counsel can neither point out the erroneous part of an instruction that is correct, nor can he point out the erroneous part of an instruction not given. He can, of course, call to the attention of the trial judge the fact that no instruction framing the issues has been submitted to the jury. But why is all this burden cast on one party? The plaintiff in this action had the burden of submitting requests on his theory of negligence, and did so. Plaintiff also has the burden of excepting to the failure of the trial court to give his requested instruction. Through inadvertence, the trial judge failed to submit the instruction, and we now hold counsel for defendant waived his right to claim error because he failed to point out to the court wherein two accurate instructions (one on the burden of proof and the other on the pleadings), when pieced together, were found to be incorrect. The error of the instructions is conceded by the majority of the court, but the judgment is permitted to stand because too high a standard is placed on one party to the proceeding.
The judgment should be reversed and the cause remanded for a new trial.
PRATT, J., concurs in the dissenting opinion of Mr. Justice LATIMER. *Page 410