88 Ark. 458 | Ark. | 1908
(after stating the facts.) This is a suit by a section hand to recover for injuries received upon a hand-car, due to the breaking of the lever bar; and the case turns upon whether a proper inspection would have disclosed the defect. The substance of the testimony on both sides will be found in the preceding statement, and the instructions are also therein set out. It is doubtful whether the court would permit the verdict to stand upon this evidence, weighed by the principles announced in St. Louis & S. F. Rd. Co. v. Wells, 82 Ark. 372, and Ultima Thule, A. & M. Ry. Co. v. Calhoun, 83 Ark. 318. But, as the judgment will have to be reversed upon another matter, and the evidence may be more fully developed upon a new trial, the court will not pass upon the sufficiency of it as found in this record.
The bill of exceptions shows the following: “Be it further remembered that at the trial of said cause, after the evidence had been closed and the instructions of the court read to the jury and the argument of counsel, the jury retired to consider of their verdict and returned into court and asked to have the instructions read to them by the court, ‘which was accordingly done. That later the jury returned into court a second time, whereupon the court read to the jury instruction No. 2 aforesaid, and added thereto the following words ‘By a competent inspector/ being the last four words of said instruction as above set forth. And thereupon the court made the following statement to the jury: 'That ought to be plain enough for anybody; there is no reason for misunderstanding that by any one/ And to the action and ruling of the court in reading only instruction No. 2 as aforesaid, and adding said words to the same, and in making said statement to the jury, the defendant at the time excepted and caused its exceptions to be noted of record.”
This action' of the court was' equivalent to submitting the whole case upon instruction No. 2. Unless the'jury had specifically asked for instruction No. 2, it should not have been read without reading all of the instructions. Instructions must be taken as an entirety. It is only when the jury fails to understand a certain one, and do understand the others, that one should be read over to them without reading the others; and even then the judge should caution them that all of the law of the case is not given in that one, but that it is only covering that particular phase of the case with which it deals. The court only read this one instruction when there was no request for it alone, and this over the objection of the defendant to giving it alone, and the court emphasized it by adding a few words thereto, and then telling the jury that it “ought to be plain enough for anybody,” and that there was no reason for misunderstanding that by any one. The jury would naturally and properly infer from the court’s singling out this instruction and making additions to it, and making these remarks in regard to it, that the whole case was determinable by it. The instruction is of itself correct. But there are many matters proper for the jury to have considered that are not therein mentioned, but which are mentioned in other instructions. For instance, the statement that the burden of proof was upon the plaintiff to establish by a preponderance of the evidence negligence on the part of the defendant, and that there was no presumption that the company has been guilty of negligence from the fact that an accident has occurred through which an employee has been injured, were all matters proper for the jury to consider which are not mentioned in this instruction. Nos. 9 and 11 were also correct and useful instructions that are not covered by No. 2. These are but illustrations of the necessity of giving all of the instructions, instead of singling out one. The court had thought it was necessary to give eleven instructions in order to cover the whole law of the case. While there is a good deal of repetition in them, and they might have been condensed, yet they are not all condensed in this instruction No. 2.
On the margin of the record that has heretofore been copied is marked, “This is error.” The transcript is made up in typewriting, and this marginal note is written with a'pen. Other notes in the same handwriting such as “Instructions of the court” the names of the witnesses, etc., appear upon the margins of the transcript.
Appellee moves to strike out this part of the record, and contends that this marginal note was intended by the judge as a nullification of the statement in the bill of exceptions; but the court can not so consider it. If the judge had intended h> reject this part of the bill of exceptions, he would have cut it out, and not indicated its error by such marginal references; and it is not shown that this note is made by the judge, and its appearance clearly indicates that it was not.
For the error indicated, the judgment is reversed and the cause remanded.