Hausken v. Coman , 66 N.D. 633 ( 1936 )

The majority opinion clarifies the situation thoroughly so far as the facts and circumstances are concerned. There was ample evidence sustaining all of the material issues in the case — the relations of parties defendant to each other, negligence of the defendants, contributory negligence of the deceased, and all other issues pertinent to the case — and these were resolved by the jury in favor of the plaintiff.

The case is reversed and sent back for a new trial because of a negative and an affirmative act on the part of the court.

It is said the court should have instructed on the doctrine of the last clear chance. The answer to this is that no such instruction was requested. The court gave an exhaustive and comprehensive charge upon the essential and controlling issues, and it is a well-settled rule in this jurisdiction that in such case there is no reversible error in failing to charge on a matter not requested. See from Lindblom v. Sonstelie, 10 N.D. 140,145, 86 N.W. 357, to Northwestern Nat. Bank v. Howlett,64 N.D. 664, 255 N.W. 574.

The appellant did ask the court to charge: "There is no pleading of last clear chance in this case. So you are not entitled to base any verdict here in favor of this plaintiff on the theory that Coman could have avoided the accident after discovering plaintiff decedent's peril. If Mr. Hausken was himself negligent in any manner, however small, and that negligence contributed in any degree, however slight, to cause his injury, then plaintiff cannot recover."

But this does not ask definition of "last clear chance." The evidence introduced shows the principle was present, so it was correct to deny the request as framed. The doctrine of contributory negligence, urged in the request, was fully covered by the charge.

The trial court instructed on the presumption founded on the instinct of self-preservation, evidently quoting from Kunkel v. Minneapolis, St. P. S. Ste. M.R. Co. 18 N.D. 367, 380,121 N.W. 830. We can readily concede that in the case at bar it was not necessary to so instruct. But the evidence showing how the accident took place does not even suggest a contradiction of this presumption. It does not intimate this "instinct" was not present. In the absence of evidence we would assume death came by accident and not as the result of want of ordinary care and diligence on the part of the deceased or intent on the part of the defendants. But the burden of showing this want of "the exercise of ordinary care and diligence" — that is contributory negligence — is on defendants. Ignatowitch v. McLaughlin, ante, 132, 262 N.W. 352. Thus the presumption there was no lack of ordinary care etc. is present. It is not a conclusive presumption, but may be rebutted by evidence. When the proper evidence is introduced, it is rebutted. The Kunkel case says, "this presumption is not overcome by the mere fact of the accident,even though no person saw it," intimating the presumption would be present even if some one saw it. The trial court here said, "This is, however, a rebuttable presumption and may be overcome by proof that he was negligent." This was correct, so far as it went. It was not necessary, however, and it would have been better for the court to have charged, "it is rebuttable by evidence" instead of "may be overcome etc.," if referred to at all.

But though we may concede that there was error in so charging, yet all error is not reversible. In the trial of a law suit of the magnitude of this case there are innumerable opportunities for error to creep in. Time and change cure most of these errors and subsequent events render most of the remainder harmless. Not only must there be error shown, but the error must be of such a character as justifies reversal. Even if we presume error was harmful, there must be reason for such assumption. In this case, where the evidence is clear and the issues as found by the jury are amply sustained, I cannot conceive how a jury could be misled in any material respect because the court stated a principle of law correct in itself. The jury would have unconsciously considered this "instinct of self-preservation" even though the court made no reference to it. It is something every one knows and every one instinctively adopts as a principle of life. We assume this dead man, if he could speak, would say, "I wanted to preserve my life." There was nothing to indicate even the possibility that the deceased intended to commit suicide or was indifferent as to whether he lived or died.

I believe the judgment should be affirmed.

Filed July 16, 1936.