McGoldrick v. Porter-Cable Tools

I concur in affirming the judgment as to Commercial Tool and Die Co., Inc., and I dissent from the reversal of the judgment as to Porter-Cable Tools.

The evidence so overwhelmingly supports a finding of no liability on the part of defendant Porter-Cable Tools that any error in failing to give the requested instruction was harmless. No different result was probable even if the instruction had been given.

Furthermore, there was no error in the court's refusal to instruct on "ordinary" contributory negligence since it was not made an issue in the case by the evidence offered by defendant. The entire case was tried on the issues of whether there was in fact a defect, and if so, whether that defect caused the injury. *Page 892

Before a party may claim reversible error on the basis of the failure to give a requested instruction, he must show more than that his proffered instruction was a correct abstract statement of the law. He must show that the instruction contained a full and correct statement of the law as applied to the issues raised by the evidence. (Wilkinson v. Southern Pacific Co., 224 Cal.App.2d 478 [36 Cal.Rptr. 689]; Trelut v. Kazarian, 110 Cal.App.2d 506 [243 P.2d 104].) It is not error to reject an instruction which is incomplete. (Hardin v. Elvitsky,232 Cal.App.2d 357 [42 Cal.Rptr. 748].)

Finally, I believe that the majority has failed to heed the mandate of article VI, section 13 of the Constitution of the State of California that "No judgment shall be set aside . . . on the ground of misdirection of the jury, . . . unless, after an examination of the entire cause, . . . the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."

There was no miscarriage of justice here, therefore I would affirm the judgment as to Porter-Cable Tools.

A petition for a rehearing was denied November 28, 1973. Compton, J., was of the opinion that the petition should be granted. The petition of respondent Porter-Cable Tools for a hearing by the Supreme Court was denied December 27, 1973. *Page 893