Northern Indiana Power Company v. West, Admx. , 218 Ind. 321 ( 1941 )

DISSENTING OPINION We cannot concur in that part of the majority opinion which resulted in the reversal of the cause.

The action is for damages for negligently causing the death of Harry O. West. Mr. West was employed as a lineman by a telephone company. There was a storm which blew down certain wires. He was engaged in making repairs in various places, and, driving along the highway, he came to a spot where telephone wires were down. He took hold of the wires for the purpose of making repairs and was electrocuted. Current from the appellant's lines had reached the telephone wires at a point about a mile and a half from where he was working. This describes the duty that he was performing for his employer at the time of his electrocution.

The instruction which is the basis of the reversal contains a statement that if "Harry O. West was performing his duties for his employer . . . in a reasonable manner," and his death was proximately caused by the negligence of the defendant, the verdict should be for the plaintiff. But this instruction did not stand alone. In other instructions the jury was told that if "the death of Harry O. West was proximately caused by the wrongful acts or omissions of the defendant, as alleged in the complaint, without contributory negligence upon the part of the plaintiff's decedent, then the plaintiff in this action would be entitled to recover . . .," and "If you find that Harry West was guilty of any negligence no matter how slight it may have been which proximately caused or contributed to cause his death, the plaintiff is not entitled to recover . . .," and "You are instructed that if at the time of the accident in question the plaintiff's decedent in company with a fellow employe of the Telephone Company, in the performance of their duties as such employees, discovered that the Telephone lines in front of the Ulmer home were down, and if at said time the plaintiff's decedent was familiar with the location of the power lines of the defendant Company, then he would be required in view of his knowledge of the conditions then existing, and the storm which had just happened, to use due care and caution in the light of such knowledge as he then had. And if you find from the evidence that he did not use reasonable care and caution in the light of the knowledge he had of the conditions existing, and such lack of reasonable care on his part contributed to the happening of the accident, then such negligence on his part would be a bar to the plaintiff's recovery in this case. You are further instructed that plaintiff's decedent would not be bound to know at all hazard that said Electric Power Line wires had come in contact with the Telephone Company wires, nor was he bound to anticipate at his own hazard that the Telephone wires were charged, but he was required under the law to use such reasonable care and caution as his experience as a telephone lineman, and his knowledge of the situation with reference to the Power lines and the telephone lines, and the condition of the weather would enable him to judge of the proper and safe way of performing his work." And in another instruction the jury was told that if "Harry O. West, without any fault of his own," was electrocuted and killed, and that the negligence of the defendant was the proximate cause, the verdict should be for the plaintiff. The court also instructed the jury that: "You are instructed that all of the law is not embodied in any one of the instructions given, but that you should take the instructions as a whole and from them determine the law as it applies to the various issues in said cause."

From these instructions, and the many other instructions in the case, it was made clear to the jury, beyond possibility of misapprehension, that if the negligence of the defendant proximately caused the death of Harry O. West, their verdict should be for the plaintiff, unless negligence on the part of Harry O. West also proximately contributed to his death. This is true unless the words, "in a reasonable manner," in the instruction which is the basis of the reversal, were construed by the jury to mean something less than, and different from, "reasonable care" or "in a reasonably careful manner." In construing written instruments and in construing instructions, courts are not so much concerned with the ordinary meaning of words as with the meaning which they convey in the setting in which they are used. Mr. Justice Holmes expressed a truth of which we are all conscious when he said: "A word generally has several meanings even in the dictionary. You have to consider the sentence in which it stands to decide which of those meanings it bears in the particular case, and very likely will see that it there has a shade of significance more refined than any given in the word book . . . So when you let whatever galvanic current may come from the rest of the instrument run through the particular sentence, you still are doing the same thing." 12 Harvard Law Review 417, 1899.

In order to determine that the instruction in question is bad it must be concluded that it stated the law incorrectly to the jury, but in order to conclude that it stated the law incorrectly, it must be concluded that, from the words, "in a reasonable manner," read in a context made up of all the instructions given, the jury received the impression that there could be a recovery, notwithstanding a lack of reasonable care on the part of Mr. West. It is not as though the instruction expressly told them that he was not required to use reasonable care. The question is, did the instruction, together with all of the other instructions, tell them that they must find that he was acting with reasonable care? Lawyers and courts generally adhere to well-known formulae in defining duties and relationships; and, while a departure from approved and familiar language may be unfortunate, it is not necessarily fatal to correct statement or definition. Jurors are laymen, and if the language used is sufficient to correctly advise the lay mind as to the duties involved, it is sufficient. If one who saw a collision between a motorcar and a truck should say that the car was being driven in a reasonable manner, there would be no doubt that he meant to convey the idea that the manner of driving was reasonable with respect to those things which were liable to cause a collision. When it is considered that the instruction here in question was given at the end of a trial in which the evidence was principally directed to the question of whether or not there was negligence upon the part of the defendant, or upon the part of the man who was killed, and in which discussion and argument of counsel were undoubtedly directed to the same questions, and where it was given in conjunction with other instructions to the effect that there could be no recovery if the negligence of the person who was killed proximately contributed to his death, or if the decedent was guilty of any negligence, no matter how slight, which proximately contributed to his death, and that the decedent was bound to use due care and caution in the light of his knowledge as a lineman, and in the light of any knowledge he may have acquired concerning the power lines being down as a result of the storm, we cannot bring ourselves to doubt that they understood the words, "in a reasonable manner," to mean in a reasonable manner respecting the things which might endanger his life or limb, and if the words conveyed that impression they served the purpose as well as words to which we are more accustomed, and the defendant was not prejudiced and the instruction was not erroneous. If all of the expressions above quoted, including the one about performing his duties for his employer in a reasonable manner, had been written into the same instruction, it would hardly be contended that it stated the law incorrectly. But all of the language of the court upon the subject of contributory negligence must be read together, whether it is confined to one instruction or contained in several, since the instructions must be considered as a whole.

It is urged that the instruction is peremptory, and therefore should contain all of the elements necessary to a recovery, but if the words, "in a reasonable manner," meant to the jury a reasonably careful manner as elaborated and described in the other instructions, it did contain all of the elements necessary to a recovery.

Having reached this conclusion, we believe the judgment should be affirmed.

ROLL, J., concurs in dissent.

NOTE. — Reported in 32 N.E.2d 713.