Hubbard v. Embassy Theatre Corp. , 196 Wash. 155 ( 1938 )

It may be conceded that the first paragraph of instruction No. 9, quoted in the majority opinion, was technically erroneous, in that it called for "a greater degree of care" instead of "a greater amount of care." But the question here is not whether the instruction was technically erroneous, but whether appellant was prejudiced thereby. A reading of the instructions in their entirety and a consideration of the evidence to which they apply convince me that the jury was not confused by the particular portion of instruction No. 9, and that the technical error contained therein was wholly without prejudice to appellant. The court covered the subject of "care" in four instructions, numbered 3, 5, 7, and 9.

In instruction No. 3, the court told the jury that one operating a public theatre owed a duty to its patrons to maintain the premises and all parts thereof open to patrons in such a condition as a reasonably careful and prudent theatre operator would deem sufficient to protect such patrons from danger within the theatre while exercising ordinary care for their ownsafety.

Instruction No. 5 reads as follows:

"If you find by a fair preponderance of the evidence in this case that the plaintiff Emma V. Hubbard used that degree of careand prudence in walking or attempting to walk through and out of the rest room at the defendant's theatre on December 5, 1936,that a person of ordinary intelligence, care and prudence andsimilarly situated would have exercised under like or similarcircumstances, and that while so walking and passing or attempting to do so through and out of said rest room she slipped upon the floor thereof, by reason of the defendant's negligence in maintaining or allowing for an unreasonable length of time a dangerous condition to exist upon the surface of the floor of said rest room open to the use by the plaintiff Emma V. Hubbard, and that as a proximate result of such slipping the plaintiff Mrs. Hubbard fell and was injured, then it would be your duty to return a verdict in favor of the plaintiffs in this case." (Italics mine.).

Instruction No. 7 again told the jury that the operator of a public theatre is bound to use, for the protection of its patrons, that degree of care which a reasonably careful and prudent theatre operator would deem sufficient to protect the visiting public from danger while such patrons are exercisingreasonable caution for their own safety.

Appellants do not contend that any of these three instructions was erroneous.

We come, then, to instruction No. 9, the first paragraph of which, consisting of one sentence, erroneously uses the word "degree" for the word "amount" in designating the care to be exercised by appellant.

It will be noted that in this paragraph of the instruction there is no statement of comparative conditions suggestive of a greater degree of care to be exercised under one set of circumstances than would be required under another set. It will further be noted that in the second paragraph of the instruction it is expressly stated that under "those conditions," that is, the conditions described in the preceding paragraph, the degree of care required of appellant was "that degree of care which an ordinarily prudent and reasonable person would have exercised for his own safety under like or similar circumstances," which, admittedly, is the correct rule. The third paragraph of the instruction harmonizes with the second in furnishing the basis upon which the verdict is to be rendered.

Assuming that the jury was gifted with such fine powers of discrimination as to perceive a distinction between the words "degree" and "amount," as pertaining to the care required, the jury would certainly also be of sufficient intelligence to understand the more specific language of the court, in the very next sentence, defining the degree of care to be used by appellant under the conditions as being that care which an ordinarily prudent and reasonable person would have exercised for his own safety under like or similar circumstances.

On the other hand, if the jury was not of sufficient acumen to detect and appreciate the difference between the words "degree" and "amount" in their application to the case, then, certainly, it was not misled thereby, for if the jury detected no difference in the significance of the two words, it would consider them as having the same meaning.

But it is wholly unnecessary to speculate upon the "degree" or "amount" of intelligence of the jury. It is sufficient to say that it would require more than ordinary perceptive powers by anyone not skilled in legal phraseology to assign any difference of meaning between the two words as applied to a case of negligence. I do not believe that it would occur, even to a lawyer, that there was any distinction, unless his wit had been sharpened by previous experience. The trial judge analyzed the matter exactly when he said:

"I do not believe, however, that the mere use of the word `degree' instead of `amount' would confuse anyone, nor would it make any difference in the jury's verdict. It is hard enough for a lawyer to see any distinction in those two words, let alone a layman. Though the instruction may not be as absolutely accurate as it might be, yet I think it states the proper rule, and I do not think that the fact that `degree' was used instead of `amount' made any difference. I will deny the motion for new trial."

The majority rely upon three decisions of this court as supporting their conclusion: Ferguson v. Yakima, 139 Wn. 216,246 P. 287, 48 A.L.R. 431; Morehouse v. Everett,141 Wn. 399, 252 P. 157, 58 A.L.R. 1482; Slattery v. Seattle,169 Wn. 144, 13 P.2d 464. It is true that those cases recognized the distinction between "greater degree of care" and "greater amount of care," and also considered the distinction as material to the particular case. But it is to be observed that the inconsistency and error in those instructions lay in the fact that, upon the question of the care required of a pedestrian, the court attempted to draw, or was asked to draw, a distinction between streets and alleys or between varying conditions of traffic upon streets. As to such conditions, the court held, in each instance, that the standard of care was the same. By reason of the comparative conditions described in those instances, however, it might logically be said that, in those cases, the jury was, or could have been, confused by such plainly inconsistent and erroneous instructions. But, in this case, no express comparison of conditions was made in instruction No. 9, and there is no basis for the claim that the jury was, or could have been, confused thereby. At any rate, the error contained in the first paragraph was so minute and indefinable as to be wholly absorbed in the clear, positive, and concededly correct rule laid down in the second paragraph of the instruction, as well as in all the other instructions above quoted.

If verdicts are to be set aside for every trifling error committed, then a jury trial is of little worth. I believe that verdicts should not be set aside except for errors that are patent and substantial. I am convinced that in this case there was no prejudicial error, and I, therefore, dissent from the opinion of the majority.

BEALS, GERAGHTY, and ROBINSON, JJ., concur with STEINERT, C.J.