Brown v. Yocum

MR. JUSTICE Pro Tem. TUTTLE Delivered the Opinion of the Court.

This is an action brought by the plaintiff to recover damages on account of the death of her husband, which occurred in an automobile collision. Verdict and judgment went for defendant, and this appeal is prosecuted therefrom.

A reversal is sought on account of error in giving and refusing certain instructions to the jury.

Plaintiff and her husband were driving their automobile along a road which intersected a main highway and terminated there. As they drove into this highway they started to make a left turn, and in so doing failed to pass around the center of the intersection and “cut the corner”. Defendant was approaching along the main highway to the left of plaintiff, and just as the latter emerged from the intersection a collision occurred, which resulted in the death of the husband. The foregoing evidence is undisputed.

At the instance of plaintiff, the juiy was instructed upon the doctrine of “last clear chance”. At the request of defendant, the court gave three instructions concerning the general law of speed and contributory negligence. Each of these last three instructions concludes with the formula to the effect that if the jury so find they must bring in a verdict for the defendant. In respect to this situation, the contention of appellant is as follows:

“The instruction . . . was presented by the plaintiff and given to the jury in order that they might have an instruction regarding plaintiff’s contention that the defendant had the last clear chance to avoid the accident which was one of the theories upon which plaintiff believed that she was entitled to recover. However, the court in giving the . . . three instructions as requested by the defendant caused an absolute conflict in the instructions and the jury were instructed that if they found'the facts as stated in any of the said three instructions then .their verdict must be against the plaintiff and in favor of the defendant, W. A. Yocum.”

[623]

It is an elemental rule that the court may instruct the jury upon all issues pleaded or otherwise established by the evidence. Inconsistent causes of action or defenses may be alleged and set up, and instructions covering them must necessarily be based upon conflicting and contradictory hvpotheses. And so here, the doctrine of last clear chance permits recovery by plaintiff though he be negligent. This was a theory upon which plaintiff relied, and she was entitled, to have it submitted to the jury. On the other hand, the defense of contributory negligence was relied upon by defendant, and the jury likewise was entitled to an instruction upon that issue. The jury were told in the three formula ■ instructions that if decedent was negligent plaintiff could not recover. In the instructions upon “last clear chance” the jury were told that if, in addition to evidence of negligence upon the part of deceased, the evidence showed that defendant had the last clear chance to avoid the collision, and failed to do so, the contributory negligence of deceased would not preclude a recovery. Bach of the last three instructions is based upon certain facts. If other and additional facts are found to be true, the jury is told that it may reach a different conclusion. We are of the opinion that the jury was not misled, and that the giving of these instructions was proper.