Mulholland v. Western Gas Constr. Co. , 21 Cal. App. 44 ( 1913 )

I dissent from the order denying a rehearing of this cause. Aside from any of the matters discussed in the opinion of the district court of appeal, there is a question presented by the record which we are bound to notice notwithstanding the omission of that court to do so; and this, for the reason that the amount involved brought the cause within our jurisdiction, by direct appeal, and its assignment to the district court for hearing and decision does not absolve us from the obligation to consider every substantial assignment of error relied upon by the appellant.

The trial judge gave to the jury the following instruction: "Defendant's claim of contributory negligence on the part of the plaintiff as set out in the verified answer of the defendant presupposes the existence of negligence on the part of the defendant, for if there was no negligence on the part of the defendant, Western Gas Construction Company, there could be no contributory negligence on the part of the plaintiff, J. J. Mulholland. The contributory negligence as used in these instructions means such negligence, if any, on the part of the plaintiff contributing directly or approximately to the accident, and except for such negligence said accident would not have occurred." It was quite proper for the district court of appeal to omit any discussion of this particular instruction, for the reason that one substantially like it was approved by this court in Linforth v. San Francisco Gas Elec.Co., 156 Cal. 66, [19 Ann. Cas. 1230, 103 P. 320], and that decision is a binding precedent in cases of this character for the district courts of appeal and the superior courts. Here, however, it may be, and in my opinion it ought to be, reconsidered. It plainly tells the jury that a plea of contributory negligence of the plaintiff is an admission of culpable negligence on the part of defendant. This is not the law. A defendant may deny that he was guilty of any negligence, and at the same time may consistently claim that even if the jury should find that he has been negligent, the plaintiff would not have sustained any injury if it had not been for his own negligence as a proximate cause. And it cannot be said that an error of this character in a distinct and completed instruction is cured by a more correct statement of the law in the general and discursive charge of the court. The result in such case is, at best, a direct conflict in the instructions — leaving the jury without a guide in their deliberations.