Mackey v. Harvey

CROCKETT, Justice

(concurring with comments.)

In my judgment this case is in the twilight zone as to whether any error in the instructions should be deemed sufficiently prejudicial to warrant the granting of a new trial.1 Particularly so when the jury were instructed that they should not single out any particular instruction, but should consider them all together. Defendant argues that if this were done the jury should have understood from other instructions that there was only a continuing duty of reasonable care imposed upon both parties. However, in view of the judgment of my fellow justices that instruction No. 15, quoted in the main opinion, is too strongly argumentative in favor of the defendant, I make no argument in its defense as applied to the facts in this case.

The following observations seem appropriate: As the main opinion seems to indicate, although that instruction did not constitute prejudicial error as applied to the facts in the Badger v. Clayson case referred to therein, that does not mean that would be true as to all fact situations. Reference is made to the prefatory material in J.I. F.U.; XV, concerning the apprehension of the committee as to the giving of instructions which may be correct in the abstract, but may be error if given where the facts would not justify it. The statement concludes that: “. . . it should not be assumed that any particular instruction may be safely requested or given merely because it appears to be a correct statement of the law [in the abstract] it must be appropriate to the case and often must be correlated to other necessary instructions.”

. See Rule 61 U.R.C.P., Rowley v. Graven Brothers, 26 Utah 2d 448, 491 P.2d 1209 (1971).