The claimed errors presented by this record relate to the refusal of the court to charge as requested by the plaintiff in several instances, and to claimed errors in portions of the charge made.
From the offers of proof, it is apparent that the verdict of the jury must have been determined by its findings as to the credibility of witnesses and the weight *Page 495 of the evidence, and is final unless the court erred in the charge as made or in the refusal to charge as requested.
The principal ground of complaint is that the court did not adequately instruct the jury in relation to the fact, which, under the offers of proof, the plaintiff claimed the jury might have found proven, to wit, that the collision between the cars of the plaintiff and the defendant and the consequent injury to the plaintiff, was proximately caused by the concurrent negligence of the defendant and Boies, and hence that the defendant was liable.
The plaintiff claims that the following portions of the charge were inadequate and misleading, in that they took from the jury the question of the effect of such concurrent negligence. The court charged: "The plaintiff has alleged that Mr. Pratt's negligence was the cause of this accident, and in order for him to recover he must prove that allegation, and must prove Mr. Pratt's negligence, irrespective of Mr. Boies' connection with the case in any way." The plaintiff requested the court to charge as follows: "If both the defendant and Mr. Boies were negligent in the operation of their respective cars, so that their joint negligence was the cause of the accident between their cars, this would not relieve the defendant from liability to the plaintiff, but the defendant would be liable to the plaintiff, if the plaintiff was not negligent."
The above excerpt from the charge and the plaintiff's request to charge, indicate the nature of the plaintiff's criticism of the charge.
The above request to charge was properly refused, because it fails to state that it must also be found by the jury that the concurrent negligence of Boies and Pratt was the proximate cause of the collision of the Pratt and Rolston cars and of the plaintiff's injury. *Page 496
Was the charge that the plaintiff must prove "Mr. Pratt's negligence, irrespective of Mr. Boies' connection with the case in any way," so inadequate and injurious as to justify holding that it constituted error in view of the whole charge? The court was clearly emphasizing the fact that the action was against Pratt alone, and that his negligence must be proved to have been a proximate cause of the collision of the Rolston and Pratt cars and the consequent injuries. In other words, that under the complaint it was not necessary for the plaintiff to prove that the negligence of Boies concurred with the negligence of Pratt to entitle him to recover.
However, the plaintiff claims that this statement to the jury would lead them to believe that if they found that the concurrent negligence of Boies and Pratt caused the collision of the Rolston and Pratt cars and the plaintiff's injury, that would not justify a verdict for the plaintiff. There are expressions in the memorandum of the court filed on the motion to amend the finding, that lend color to the claim that it was the court's intent to so charge. However, the charge must be considered as a whole, and the charge, and not the subsequent memorandum of the court, was what the jury had for its guidance.
It is to be borne in mind that the offers of proof of both parties disclose that the collision between the Rolston and Pratt cars occurred some moments after the collision of the Boies and Pratt cars, and that the plaintiff claims that Pratt's conduct in driving on the westerly side of the road after that collision negligently caused the collision with his standing car and his injuries; while Pratt claims that his collision with Boies' car was without his fault and threw his car to the west, where he, using due care, immediately stopped, and Rolston negligently drove his car into his car so standing. *Page 497 There was no attempt to prove that the three cars of Boies, Pratt and Rolston came together at substantially the same time.
The plaintiff claims that if the jury found that the collision of the Pratt and Rolston cars was proximately caused by the concurrent negligence of Pratt and Boies, the charge did not adequately guide them as to the liability of Pratt to him.
The vice of the plaintiff's claim is that it would be a mere conjecture for the jury to find that the collision of the Boies car and the Pratt car was a result of the concurrent negligence of Boies and Pratt. Neither the plaintiff nor defendant offered evidence in support of this state of facts. Each offered evidence of a different state of facts, the plaintiff that the negligence of Pratt solely caused the collision, and the defendant that the negligence of Boies was the sole cause of the collision. The jury, in order to find that the concurrent negligence of Boies and Pratt caused that collision, could only do so by conjecture unsupported by evidence to that effect offered by either party. It is not compatible with the offers of proof that the Pratt-Boies collision was caused by their concurrent negligence.
The court confined the charge to the facts as to which evidence was offered. After giving an unexceptional charge as to when a negligent act is the proximate cause of an injury, the court charged as follows: "But now, let us suppose that Mr. Boies was negligent, as alleged by the defendant, that the thing took place just as the defendant claims it did, that Mr. Pratt's front wheels passed Mr. Boies' front wheels, that Mr. Boies turned his car to the right and skidded his rear into Mr. Pratt's left front, throwing Mr. Pratt's car out of control, but who within a few feet stopped his car, and was then crashed into by Mr. Rolston." If this was inadequate, Pratt and Rolston cars and of the plaintiff's injury. *Page 498
The court further charged: "Well, now, to put the matter the other way, by another illustration. Let us look at it from the plaintiff's claim. Let us suppose that the collision between the Boies and Pratt cars did not occur within, say fifty feet of the place where the ultimate collision took place, as claimed by Mr. Pratt, but took place one hundred and fifty or two hundred feet further south on the road, near the bridge, and that Mr. Pratt would have had ample time, in that space, if he had been going at the rate of speed he said he was, to have stopped his car; but that instead of that he let drive and negligently ran into the standing car of the plaintiff. We have there a case where, as it seems to me, and as I charge you, the negligence of the defendant, Mr. Pratt, was the proximate cause and the direct cause and immediate cause of this injury."
The court thus gave the jury a charge favorable to the plaintiff upon the state of facts which the plaintiff claimed to have proved, and which was applicable, whether the collision of the Boies and Pratt cars was caused by the negligence of Pratt or Boies, and in fact if that collision was caused by their concurrent negligence, as to which no evidence was offered. The instruction that the plaintiff must prove "Mr. Pratt's negligence, irrespective of Mr. Boies' connection with the case in any way," was not, therefore, misleading, in view of the facts claimed to have been proved and of the rest of the charge.
The charge as a whole was adequate for the guidance of the jury, and the reasons of appeal not relating to the claim of concurrent negligence are so obviously groundless as not to justify discussion.
There is no error.
In this opinion the other judges concurred.