7902. Particular words and phrases 7915. Assumption of facts in in

§ 7898. Definition of Terms.-In the absence of a special request, it is not necessary, in an action to recover damages for injuries or death alleged to have resulted from the negligence of the defendant, that the instructions to the jury should clearly define negligence and contributory negligence, even though such questions are in issue.1 An instruction which authorizes a verdict for the plaintiff, if the defendants by their servants "failed to do any duty they were required to do," should define these duties. But a special charge to find for

1 Galveston &c. R. Co. v. Holyfield (Tex. Civ. App.), 70 S. W. Rep. 221 (no off. rep.).

Louisville &c. R. Co. v. Clark, 105 Ky. 571; s. c. 49 S. W. Rep. 323.

the plaintiff, if the defendant was negligent, without defining the duty and liability of the defendant under the circumstances of the case, was held proper, where the law was applied to the facts of the case by the general charge in connection therewith."

§ 7899. As to General and Special Instructions.-An instruction which authorizes a verdict for the plaintiff if the injury complained of was negligently caused by the plaintiff's servants, without the plaintiff's fault, is not erroneous as being too general, where it is followed by another instruction which correctly defines negligence as applied to the case in hand. The court may properly refuse to give a general instruction on the law of negligence applicable to the case if the question submitted to the jury for the special verdict embraces all the issuable facts of the case."

§ 7900. Instructions as to "Gross" Negligence.-In jurisdictions where the distinction between ordinary and gross negligence is recognized, it is proper to instruct the jury as to what constitutes gross negligence, if such fact is put in issue by the pleadings" and is supported by the evidence. It has been held not improper to define gross negligence as being such utter want of care and caution as amounts to recklessness and a complete disregard of the care a man owes himself. The Georgia Civil Code defines gross negligence as "the want of care which every man of common sense, how inattentive soever he may be, takes of his own property"; and it has been held erroneous to omit the words "how inattentive soever he may be" from an instruction on this

Missouri &c. R. Co. v. Lyons (Tex. Civ. App.), 53 S. W. Rep. 96 (no off. rep.).

4

McMahon v. Pacific Exp. Co., 132 Mo. 641; s. c. 34 S. W. Rep. 478.

B Klatt v. N. C. Foster Lumber Co., 97 Wis. 614; s. c. 73 N. W. Rep. 563.

Bertelson v. Chicago &c. R. Co., 5 Dak. 313; s. c. 40 N. W. Rep. 531; Cincinnati &c. Co. v. Lewallen, 32 S. W. Rep. 598; s. c. 17 Ky. L. Rep. 863; Chicago &c. R. Co. v. Scates, 90 Ill. 586.

Louisville &c. R. Co. v. Law, 14 Ky, L. Rep. 850; s. c. 21 S. W. Rep. 648 (no off. rep.).

8 Davis v. Atlanta &c. R. Co., 63 S. C. 370, 577; s. c. 41 S. E. Rep. 468, 892. See also, Missouri Pac. R. Co. v. Shuford, 72 Tex. 165; s. c. 10 S. W. Rep. 408; Missouri Pac. R. Co. v. Mitchell, 72 Tex. 171; s. c. 10 S. W. Rep. 411. An instruction was properly refused, which stated that

8

it cannot be said as a matter of law that the running of the train which caused plaintiff's injuries at the speed at which it was running when the injuries were inflicted, constituted gross or wanton recklessness, carelessness, or negligence, as it might lead the jury to believe that as a matter of law the persons in charge of the train were not guilty of wantonness or recklessness: Louisville &c. R. Co. v. Orr, 121 Ala. 489; s. c. 26 South. Rep. 35. An instruction was held erroneous which defined ordinary negligence and then added that "gross negligence is a greater or higher degree of negligence than ordinary negligence," since gross negligence consists of such entire want of care as raises a presumption of a conscious indifference of consequences: Southern Cotton Press &c. Co. v. Bradley, 52 Tex. 587.

issue. Where there is evidence of gross negligence in a particular respect which has little or no relation to the casualty in question, the instruction if given should be limited to the particular matter to which it is pertinent.10

§ 7901. Instructions should be Clear and Easily Understood.-A charge to the jury should, if possible, be plain, simple and easily understood, free from obscurity, involvement, ambiguity, metaphorical intricacy or tendency to mislead; and if objectionable on any of these grounds, it should be refused, although when closely analyzed it may state a correct legal proposition.11 An instruction has been held misleading which stated that the plaintiff was not required to produce direct and positive evidence as to what the deceased was doing when he received the injury resulting in his death, where the real question was, why he was at such place and whether the injury was inevitable.12 So, an instruction limiting the inquiry as to the plaintiff's negligence to the time of the accident was held to be misleading, where the question under investigation was whether he failed to use ordinary care to avoid the dangerous position.13 So, where the jury are told that the plaintiff cannot recover upon a given state of facts, if they find that he was a mere volunteer and was guilty of contributory negligence the instruction is erroneous, since either the fact of contributory negligence or that the plaintiff was a volunteer was sufficient to defeat recovery.14 So, the court properly refused a requested charge submitting two acts of negligence, the existence of either of which would render the defendant liable, and instructing the jury that failure to establish each and all of the acts of negligence enumerated would defeat a recovery.15

§ 7902. Particular Words and Phrases Used in Instructions.-The court should avoid the use of words and phrases having a tendency to confuse or mislead the jury. Thus, the use of the expressions "slight negligence" and "slight want of ordinary care," should be avoided, as they tend to obscure the meaning and mislead the jury.16 So, the word "naturally" should not be used for the word "reasonably" in in

"Seaboard &c. R. Co. v. Cauthen, 115 Ga. 442; s. c. 41 S. E. Rep. 653. 10 Atchison &c. R. Co. v. Henry, 57 Kan. 154; s. c. 45 Pac. Rep. 576. "Louisville &c. R. Co. v. Hall, 87 Ala. 708; s. c. 6 South. Rep. 277.

12 Pittsburgh &c. R. Co. v. Dahlin, 67 Ill. App. 99.

13 Chicago &c. R. Co. v. Halsey, 133 Ill. 248; s. c. 23 N. E. Rep. 1028.

14 Virginia &c. Wheel Co. v. Chalkley, 98 Va. 62; s. c. 34 S. E. Rep. 975,

15 Texas &c. R. Co. v. Mortensen, 27 Tex. Civ. App. 106; s. c. 66 S. W. Rep. 99.

16 Culbertson v. Holliday, 50 Neb. 229; s. c. 69 N. W. Rep. 853; Omaha St. R. Co. v. Craig, 39 Neb. 601; s. C. 58 N. W. Rep. 209.

structing the jury on the question of negligence, as the words are not equivalents.1 So, an instruction that if the plaintiff's negligence contributed in any material degree to the accident, he could not recover, was erroneous, since the use of the word "material" allowed the jury to consider the degree of the plaintiff's negligence; a plain violation of the rule that the plaintiff cannot recover if his negligence contributed in the least degree to the accident.18 So, an instruction requiring proof of negligence "to the satisfaction of the jury" is erroneous as requiring too high a degree of proof.19 So, an instruction "that an injury that is the result of many fortuitous circumstances is an accident and not actionable" was properly refused as misleading.20 So, in an instruction that "ordinary care means that degree of care, which an ordinarily prudent person would or ought to use in regard to a similar matter under like circumstances," the phrase "or ought to," should be omitted.21 For like reasons the court should be careful not to make use of repugnant and inconsistent expressions; as, for example, that the defendant is guilty if the injury was "intentionally and carelessly" inflicted.22 On the other hand, courts have refused to find error in the use in instructions of such convertible words and expressions as "culpable" for "blamable,"23 "occasioned" for "caused," "fault" for "negligence," "expected" for "accustomed," "due care" for "ordinary care." An instruction which authorized a recovery if the plaintiff, while in the exercise of ordinary care, was injured "by reason of the 'alleged' negligence of the defendant," was upheld as against the objection that it allowed a recovery for merely "alleged" negligence without proof of the facts. The expression, "while in the exercise of ordinary care and caution for his own safety," is sufficiently comprehensive as to time, since the word "while," which means during that

28

17 Ohlenkamp v. Union Pac. R. Co., 24 Utah 232; s. c. 67 Pac. Rep. 411. 18 LaFlam v. Missisquoi Pulp Co., 74 Vt. 125; s. c. 52 Atl. Rep. 526.

19 Louisville &c. R. Co. v. Gidley, 119 Ala. 523; s. c. 24 South. Rep. 753; Stratton v. Central City &c. R. Co., 95 111. 25.

20 Miles v. Postal Tel. Cable Co., 55 S. C. 403; s. c. 33 S. E. Rep. 493.

21 Chicago &c. R. Co. v. James (Tex. Civ. App.), 75 S. W. Rep. 930 (no off. rep.).

22 Bindbeutal v. Street R. Co., 43 Mo. App. 463.

23 Peoria &c. R. Co. v. Clayberg, 107 Ill. 644; McPherson v. Saint John, 32 N. B. 423.

ford, 29 Colo. 511; s. c. 69 Pac. Rep. 600.

25 North Chicago St. R. Co. v. Rodert, 105 Ill. App. 314; s. c. aff'd, 203 Ill. 413; 67 N. E. Rep. 812.

26 Ready v. Peavey Elevator Co., 89 Minn. 154; s. c. 94 N. W. Rep. 442 (instruction used expression "such care as persons of ordinary diligence are 'expected' to exercise"). See also, Galveston &c. R. Co. v. Bonnet (Tex. Civ. App.), 38 S. W. Rep. 813 (no off. rep.).

27 Baltimore &c. R. Co. v. Faith, 157 Ill. 58; s. c. 51 N. E. Rep. 807; aff'g s. c. 71 Ill. App. 59.

28 West Chicago St. R. Co. v. Petters, 95 Ill. App. 479;. s. c. aff'd, 196

24 Union Gold Mine Co. v. Craw- Ill. 298; 63 N. E. Rep. 662.

time, implies some degree of continuance and refers to the series of circumstances involved in the transaction.29

§ 7903. Methods of Stating General Rules and Exceptions.-In charging the jury on a question of negligence, the general rule may be stated in one instruction and an exception thereto in another.30 But where the jury are required to return a special verdict, it is not proper to instruct the jury on the ultimate fact of negligence, as such question is for the court upon the facts to be found by the jury.31 It is sometimes proper, in an action based upon the defendant's negligence, where the defense is contributory negligence, to submit the question. of negligence and contributory negligence as separate issues; but if both have contributed to the injury, it is permissible to submit the issue as to the defendant's negligence with an additional instruction to find for the defendant if the plaintiff's negligence contributed to his injury.32

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§ 7904. As to Repetition of Instructions.-The court is not required, upon request of either the plaintiff or the defendant, to repeat an instruction already given, or which, in substance and effect, is contained in other instructions given to the jury. Repetition of the same thought may involve another vice, that of singling out particular ideas and putting undue emphasis upon them. But the fact that a court several times repeated in his charge the point that in putting an insane woman off a car the conductor is required to use a high degree of care, was held not a violation of the rule where the repetition occurred only when it was necessary to qualify the principles applicable to the different phases of the case.3+

§ 7905. Instructions must be Confined to the Issue Made by the Pleadings.35 The court in charging the jury should confine his instructions to the issues set forth by the pleadings,36 an instruction not

29 St. Louis Nat. Stockyards v. Godfrey, 101 Ill. App. 40; s. c. aff'd, 198 Ill. 288; 65 N. E. Rep. 90.

30 Stratton v. Central City &c. R. Co., 95 Ill. 25.

31 Louisville R. Co. v. Lynch, 147 Ind. 165; s. c. 34 L. R. A. 293; 44 N. E. Rep. 997; 46 N. E. Rep. 471.

*Scott v. Wilmington &c. R. Co., 96 N. C. 428; s. c. 2 S. E. Rep. 151.

33 Evansville v. Senhenn, 26 Ind. App. 362; s. c. 59 N. E. Rep. 863; Cannon v. Lewis, 18 Mont. 402; s. c. 45 Pac. Rep. 572; Consolidated Traction Co. v. Chenowith, 58 N. J. L.