I concur in the conclusion that the court amply presented appellant's theory of the case.
I rather think we have dignified the objection as to the phrase beyond what it deserves. Had the court instructed the jury that in order to recover damages it was necessary that the jury be satisfied by a preponderance of the evidence that the defendant failed etc., it would seem to me to entail the same idea as did Instruction No. 8. Such phrases as "the plaintiff must establish by a preponderance" or "must satisfy you by a preponderance" etc., are often used. And the minds of the jurymen should be "satisfied" or "convinced" or "be set at rest" whichever way it may be expressed by a preponderance of the evidence. It is axiomatic that he who asserts a claim or defense has the burden of persuasion as to the merits of his claim or defense. If the phrase "prove to your satisfaction" is construed to mean "persuade you," as I think it should sensibly be read, I see no objection. After the jurymen discuss, ponder over and weigh the evidence and uncertainty is removed their "minds are made up" — a very ancient and homely way of expressing satisfaction with their mental state in regard to a question. And if by a preponderance of the evidence a juryman's mind is made up in favor of the one who asserts the claim then the claimant has proved his claim to the satisfaction of *Page 502 such juryman. To persuade by a preponderance of evidence means that taking the evidence quantitively and qualitatively and considering all the factors which affect credibilty, the evidence has carried that measure of conviction that will satisfy the jury, i.e., the requisite number of individual jurymen that the claim is a meritorious one and that the claimant should prevail in his claim for damages or his claimed defense. The chief objection to the court's use of the phrase "prove to your satisfaction" might be that it is reduntant. In instruction No. 4 the court defined "preponderance of evidence" as "the greater weight of the evidence that which is more convincing as to its truth." This has in it somewhat the idea that the jury should be satisfied as to the truth if the greater weight leans toward the claimant, yet I can conceive of a case where the jury might bemore convinced that the evidence of one side is nearer the truth than that of the other side and yet not feel that the evidence satisfied them as to the right to recover. I do not think the word "satisfaction" used in this sense, deals with "emotional reactions." It must mean that he is satisfied with the result of his thinking and that itself is in the realm of reasoning rather than in the realm of emotions. Satisfaction in the sense used does not mean a feeling of satisfaction which is somewhat equivalent to well being but rather intellectually satisfied although the state of being intellectually satisfied may bring on a "feeling of satisfaction" which has an emotional cast. The world of feeling and intellect blend into each other. Also I can see no objection to the word because it has a personal meaning to each juryman; nor that there is no way of determining "satisfaction" upon a basis of what would satisfy men generally. True it is a subjective test, but a subjective test based on experience in life. To an extent although perhaps not as subjective are the tests of a "prudent man" or a "reasonable man," and many like tests the law must devise because it cannot apply mathematical standards.
I also concur in the finding that there was nothing prejudicial in Instruction No. 11. Perhaps it was too *Page 503 dogmatic or attempted a refinement of what constituted contributory negligence to instruct that "at all times must use reasonable care to look and watch where he [plaintiff] is about to step." If this is equivalent to a statement that the plaintiff must at all times "look and watch where he is about to step" that may, under some circumstances, be impossible although that would seem to be a rare occasion. But in this case as pointed out in the main opinion the instruction was aimed at a conclusion that if the jury believe the evidence that the plaintiff walked or backed off of the platform into the pit such conclusions would take out of the case the version that the grease hose caught on the rail causing the plaintiff to be jerked into the pit.