Stephenson v. Phoenix Wood & Coal Co.

MARKS, J. This case involves separate appeals by two groups of defendants from a judgment in favor of plaintiffs who were injured in a collision between a station wagon, in which they were riding as passengers for hire, and a semi-truck and trailer, owned by R. M. Dunlap, R. G. Baker and M. F. Greaves, being operated with their consent by the Phoenix Wood and Coal Company through Jake Kelly, its employee.

The station wagon was owned by Clarence Harlow and Emily Harlow doing business under the name of the Mission Limousine Service. It was a common carrier and was being driven by Levi Chestnut, an employee of the owners. Both drivers were on the business of their employers and acting within the scope of their employment at the time of the accident.

As the two groups of defendants take entirely conflicting positions on this appeal, we will, where possible, refer to the driver of the station wagon and its owners as the defendants, and to the other defendants as the appellants.

The appellants admit the negligence of Kelly in two respects but urge that such negligence was neither a proximate nor a concurring cause of the accident. They also urge prejudicial error in one instruction given to the jury. On the other hand the defendants admit the negligence of Chestnut; that such negligence was a proximate and concurring cause of the accident. They argue that the admitted negligence of Kelly was also a proximate and concurring cause. They find no prejudicial error in the record and urge affirmance of the judgment. They state that their appeal [790]was taken solely for the purpose of protecting their rights in the event of a reversal of the judgment against the appellants.

The instructions given to the jury are not incorporated in the record as originally filed. The appellants have moved to augment the record by their inclusion. This motion is resisted by plaintiffs on the ground of lack of diligence in preparing the record. The original instructions have been delivered to the clerk of this court and are now available to us.

Rule 12 of Rules on Appeal give us authority to order augmentation of the record on our own motion where such course seems advisable. It is the policy of this court, where possible, to have a sufficient record before it for the consideration of all material questions. Therefore the motion will be granted so we may pass upon the effect of the erroneous instruction.