Gibbons v. Vanderhoogt

Mb. Justice Sears delivered the opinion of the Court.

It is contended by counsel for appellants, under appropriate assignments of error:

1st. That the trial court erred in refusing to give the fifth instruction tendered by appellants.

2d. That the evidence showed contributory negligence on the part of appellee,- which barred a recovery.

3d. That the evidence failed to show any negligence on the part of appellants.

The fifth instruction was properly refused. It was substantially included in the second instruction given for appellants. This was sufficient, and there was no obligation upon the court to repeat it, however accurate its substance may have been.

The question as to contributory negligence was properly submitted to the jury. It was for a jury to determine what circumspection should be required of this lad of fourteen under the circumstances, and under the rules as to ordinary care. The position assumed by him in the wagon can not be declared to have constituted per se such lack of care as would be, in contemplation of law, contributory negligence.

But the difficulty of appellee’s case arises upon the question of a showing of any negligence on the part of appellants.

According to the testimony of all witnesses to the accident, five in number including appellee, the Reid, Murdoch & Co. wagon suddenly stopped when the team of appellants was following it at a distance variously stated at from five to' eight feet. According to four of the five witnesses, the Reid, Murdoch & Co. wagon not only stopped, but was suddenly backed into contact with the pole of appellants’ • wagon, and this is not denied by any witness. One of the four, Meyers, a witness for appellee, changed his testimony when called a second time as a witness. His first statement was: “ There must have been something run in front that brought these teams together. I can not tell, because they backed up so sudden. The Reid-Murdoch wagon backed up suddenly; it backed up into the Standard Oil (appellants’) wa^on. The driver of the Standard Oil wagon was attending to his horses; he seemed to be taking pretty good care of them; he was driving carefully.”

Subsequently, when recalled, he testified that appellants’■' driver was looking north just before the accident.

From all the evidence it may be said to be undisputed that the accident was caused by the sudden backing up of the Reid, Murdoch & .Co. wagon, with which .-occurrence' appellants had no casual connection whatever.

The only attempt to fix any negligence upon appellants is by the testimony of Coleman and Meyers. Coleman testified that appellants’ driver held his lines very loosely, and was looking north instead of at his téam. He was. also per-mi tied to say, on cross examination, “ I thought it was a very careless piece or way of driving.” Meyers, upon his second examination, said that appellants’ driver was looking to the north.

But even if it be said that the jury might have credited Meyers upon his second statement, and believed Coleman, yet the fact that the driver was looking north and not attending to his team, if established, would not suffice to furnish the proximate cause of this injury, when the uncontradicted evidence is that the other wagon was suddenly backed against appellants’ team, and was the precise and proximate cause of the injury. There is a decided preponderance of the evidence to the effect that appellants’ driver was attending to his team, and that no act or omission by him had aught to do with the accident, and there is not a hint in the evidence that, if he was not attending to his team, but" looking to the north, a different course of conduct could possibly have prevented a frightened horse in front from backing upon him, or that he could have in any way escaped the collision.

The verdict is not supported by evidence of any negligence of appellants as a proximate cause of the injury. The judgment is reversed and the cause remanded.