Herricks v. F. Hennessey Co.

KNIGHT, J.

This is an action for damages on account of personal injuries plaintiff claimed to have sustained as a result of a collision between an automobile driven by him and a truck belonging to the defendant corporation and operated by the defendant Costigan. Upon trial before a jury, a verdict was rendered in favor of the defendants,

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and plaintiff appeals from the judgment entered thereon. The single question involved relates to certain proceedings had after the cause had been submitted to the jury, and just prior to the rendition of its verdict.

Plaintiff’s cause of action was based upon the alleged negligence of the driver of the truck; and one of the defenses urged was that plaintiff was guilty of contributory negligence. The court fully, fairly and correctly instructed the jury upon the law relating to those issues, and several times throughout its charge informed the jury in substance that contributory negligence, to bar a recovery, must proximately contribute to the happening of the accident. After the jury had deliberated for some time it returned into court, and upon inquiry by the court the foreman announced that the jury had agreed upon a verdict. Thereupon the following proceedings took place: “The Court: Read your verdict, Mr. Foreman. The Foreman: ‘We the jury in the above entitled cause find negligence on the part of both parties by a vote of nine to three. ’ The Court: Read that again. The Foreman: ‘We the jury in the above entitled cause find negligence on the part of both parties by a vote of nine to three. ’ The Court: Yes, that is proper but I might add to that that finding negligence of both parties, under the instructions of the court, your verdict should have been for the defendants. The Foreman: There was a little doubt on that point. The Court: If you find any negligence on the part of the plaintiff then the plaintiff will not recover.” The court then requested the jury to retire and correct the verdict “in that way”, adding, “that is, if you agree to it”. Whereupon the jury again retired and subsequently returned a verdict in due form, finding for the defendants.

The contention plaintiff makes is that the remarks of the court amounted to an instruction upon the law of negligence, and that since the element of proximate cause was omitted therefrom the instruction was erroneous. In our opinion there is no merit in the contention. Section 619 of the Code of Civil Procedure reads as follows: “When the verdict is announced, if it be informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out”; and in construing said