Shelton v. Burke

WOOD (Fred B.), J.

Plaintiff tripped and fell while carrying a barrel of refuse from his employer’s laboratory along and through an alleyway, for deposit in garbage cans placed there for that purpose. The jury gave its verdict in favor of defendants, the owners of the alleyway and the building which it served.

The sole assignment of prejudicial error is the fact that in response to the jury’s request therefor the trial judge sent a written instruction on contributory negligence into the jury room.

An instruction is not one of the papers which the jury is authorized to take into the jury room. (Code Civ. Proc., §§ 612-614.) Accordingly, it was irregular and therefore erroneous to permit the taking of this instruction into the jury room.

(Melikian

v.

Independent P. S. Co.,

8 Cal.App. 2d 166, 168 [47 P.2d 539] ;

Fererim

v.

Silvey,

38 Cal.App. 346, 359 [176 P. 371].) However, we do not find it prejudicial under the circumstances of this case.

The jury was instructed, and retired for deliberation at 3 :40 p. m. Deliberation continued, with time out for dinner, until 10 :20 p. m., when the court recalled the jury to see if a verdict was possible. The foreman indicated that disagreement existed in regard to the issue of contributory negligence and asked that the court reread its instruction on contributory negligence. The court reread its previously given instruction on contributory negligence. Plaintiff interposed no objection. The jury retired for further deliberation.

Within a matter of a few minutes the court announced in the presence of counsel for both parties that the jury had asked for the written instruction on contributory negligence which had just been reread to them. The court complied with this request over objection of counsel for plaintiff. Counsel’s objection was that it would be improper to send a written instruction to the jury room as it would tend to focus the jury’s attention on a single instruction instead of the instructions as a whole. About 10 minutes later, the jury returned its verdict in favor of defendants.

- The instruction, to which plaintiff interposed no objection and the correctness of which he does not question, was an accurate and adequate statement on the subject of contribu