Beyerle v. Clift

CONREY, P. J.

Action to recover damages for injuries to a truck owned by the plaintiff, such injuries being caused, so it is alleged, by negligence of the defendant in the operation of an automobile driven by him, by reason whereof it became necessary for the operator of plaintiff’s truck to drive the truck entirely off the highway, in order to avoid a collision with the defendant’s automobile. As a result of its being so driven off the highway into soft ground, the truck turned over and was thereby damaged to the extent described in the complaint. The defendant, in

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addition to denying the alleged acts of negligence on his part, alleged that the plaintiff “was guilty of negligence in the manner in which he operated his automobile truck at the time and place of the accident, in that he did not exercise ordinary care or any care in the operation of said truck, all of which directly and proximately contributed to the accident in question.” Pursuant to the verdict of a jury, judgment was entered in favor of the plaintiff. Defendant appeals therefrom.

The errors relied upon consist in the giving of two instructions to the jury. In each of these instructions the court stated certain provisions of law defining the duties imposed upon an operator of a vehicle, and then said: “If, therefore, you believe that the defendant violated any of the provisions of the law above mentioned at the time of the accident complained of in this case, and that such violation was the proximate cause of the accident, you should find for the plaintiff.” Assuming that the issue of contributory negligence was properly before the court, there is no doubt that these were erroneous instructions, because it is settled law that if an instruction by its terms purports to state the conditions necessary to a verdict, it must state all those conditions and must not overlook pleaded defenses on which substantial evidence has been introduced. “It is clear that an instruction directing a verdict for the plaintiff in the event that the jury finds certain facts to be true, must embrace all the things necessary to show the legal liability of the defendant and to warrant the direction or conclusion contained therein that plaintiff is entitled to a verdict, and such is the rule in this state.”

(Pierce