West Publishing Company Henry Edward Randall.

A treatise on the law of instructions to juries in civil and ..., Volume 1 online

. (page 124 of 145)
Online LibraryWest Publishing Company Henry Edward RandallA treatise on the law of instructions to juries in civil and ..., Volume 1 → online text (page 124 of 145)
Font size
QR-code for this ebook


Co., 114 N. W. 1063, 137 Iowa, 309;
Van Buskirk v. Quincy, O. & K. C. R.
Co., Ill S. W. 832. 131 Mo. App. 357.

58Barnewall v. Murrell, 108 Ala.
366, 18 So. 831.

60 People V. Duzan, 112 N. E. 315,
272 III. 478 ; McDonald V. Fairbanks,
Morse & Co., 161 111. 124, 43 N. E.
783; Tobin v. People, 101 111. 121;
Cook V. Hunt, 24 111. 535; Chicago
Union Traction Co. v. Olsen, 113 111.
App. 303, Judgment affirmed 71 N. E.
985, 211 lU. 255 ; Harrigan v. Turner,
65 111. App. 469; Frame v. Murphy,
56 111. App. 555; St. Louis, A. & T.
H. R. Co. V. Hawkins, 39 111. App. 406;
Qapp V. Martin, 33 HI. App. 438.
See Washington v. State, 106 Ala. 58,
17 So. 546.

Effect of error in marking in-
struction. Where, in a closely-con-
tested case, an instruction which cor-
rectly states the law upon an impor-



tant branch of the case is read to the
jury, marked "Refused," and given to
the jury with other instructions
marked "Given," and no other in-
struction covering the same point is
given, a reversal of the judgment is
justified. Terre Haute & I. R. Co. v.
Hybarger, 67 111. App. 480.

01 m. Daxanbeklar v. People, 93
ni. App. 553 ; World's Columbian Ebc-
position V. Bell, 76 111. App. 591.

Iowa. Turley v. GrifliDi 76 N. W.
660, 106 Iowa, 161.

Neb. Clasen v. Pruhs, 95 N. W.
640, 69 Neb. 278, 5 Ann. Cas. 112;
Home Fire Ins. Co. v. Decker, 75 N.
W. 841, 55 Neb. 346; Eickhoflf v. Elk-
enbary, 72 N. W. 308, 52 Neb. 332.

62 Leman v. United States Fidelity
& Guaranty Co. of Maryland, 137 lU.
App. 258; Chicago, W. & V. Coal Co.
V. People, 114 IlL App. 75, judgment
affirmed 73 N. E. 770, 214 111. 421.

»8 Territory v. Cordova, 68 P. 919,
11 N. M. 367.

•* State V. Ferguson, 9 Nev. 106.

In California, since the jury can
take into their room only instructions
given and have no knowledge of in-
structions which have been refused,
the court need not state to the jury
that it refuses to give certain Instruc-
tions asked because they have been
given in other instructions. People v.
Barthleman, 52 P. 112, 120 Gal. 7.



Digitized by



Google



879



BBQUESTS OB PRATERS FOR INSTRUCTIONS



§494



§ 494. Inconsistent requests

A party cannot complain of the refusal of a requested instruction
which is inconsistent with one given at his own instance.** At
least he cannot so complain without first asking for the withdrawal
of the prior inconsistent instruction.** Inconsistencies between in-
structions given at the request of the respective parties, arising
from the fact that the instructions given at the instance of one

W. Va, Baltimore & O. R. Co. v.
Laflferty, 2 W. Va. 104; Lazzell v.
Napel, 1 W. Va. 43.

Requests held not inoonsisteat
within mle. The insertion in an
instruction requested by plaintiff of a
requirement that the jury must find
that the west side of a street intersec-
tion was the regular stopping place
for street cars traveling in the direc-
tion plaintiff was going at the time
she was injured in attempting to
alight did not preclude her from hav-
ing the case submitted to the jury in
another instruction, to the effect that,
if the car was halted in obedience to
her signal to permit her to alight, and
was started carelessly while she was
doing so, she was entitled to recover,
regardless of the question whether
the car had stopped at its usual stop-
ping place. Groshong v. United Rys.
Co. of St Louis, 121 S. W. 1084, 142
Mo. App. 718. A requested charge by
defendant, in slander, that, unless he
spoke the words charged in the peti-
tion or enough of them to constitute
the charge of misconduct, the verdict
should be for him, given as the coun-
terpart of a charge given for plain-
tiff, is not inconsistent with the posi-
tion taken by defendant by demurring
to the evidence on the ground of in-
sufliciency to support the petition.
Kunz V. Hartwlg, 131 S. W. 721, 151
Mo. App. 94. In action for injury to
a person struck by a train at a grade
crossing, plaintiff, by submitting the
issue of the humanitarian doctrine,
did not preclude himself from sub-
mitting his theories of recovery based
on negligence. De Rousse v. West,
200 S. W. 783, 198 Mo. App. 293.



«5 Ala. Western Union Telegraph
Co. V. Griffith, 50 So. 91, 161 Ala. 241.

Colo. Healey v. Rupp, 63 P. 319,
28 Colo. 102.

HI. Chicago City Ry. Co. v. Tay-
lor, 48 N. B. 831. 170 111. 49, affirming
judgment 68 111. App. 613; United
States Rolling Stock Co. v. Wilder,
116 111. 100, 5 N. E. 92; Fltzslmmons-
Kreider Milling Co. v. Millers' Mut
Fire Ins. Ass'n of Illinois, 161 IlL
App. 542.

Ky. Louisville & N. R. Co. v. Hun-
ter. 10 Ky. Law Rep. (abstract) 871.

Md, ^tna Indemni^ Co. of Hart-
ford, Conn., V. George A. Fuller Co.,
73 A. 738, 111 Md. 321, reargument
denied 74 A. 369, 111 Md. 321; B. F.
Sturtevant Co. v. Cumberland Dugan
& Co., 68 A. 351, 106 Md. 587, 14 Ann.
Cas. 675; Cumberland Coal & Iron
Co. V. Tilghman, 13 Md. 74.

Mass. Percival v. Chase, 65 N. E.

800. 182 Mass. 371.
Mo. St Louis, K. & N. W. R. Co.

V. Knapp, Stout & Co. Company, 61
S. W. 300, 160 Mo. 396 ; Tetherow v.
St Joseph & D. M. R. Co., 98 Mo. 74,
11 S. W. 310, 14 Am. St. Rep. 617.

Neb. Missouri Pac. R. Co. v. Fox,
83 N. W. 744, 60 Neb. 531.

K". Y. Ramsey v. National Con-
tracting Co., 63 N. Y. S. 286, 49 App.
Div. 11.

Pa. Griesemer v. Saburban Elec-
tric Co., 73 A. 340, 224 Pa. 328.

Tex. Missouri, K. & T. Ry. Co. of
Texas v. Reno (Civ. App.) 146 S. W.
207; Texas & P. Ry. Co. v. Hassell, 58
S. W. 54, 23 Tex. Civ. App. 681;
Scott V. Texas & P. Ry. Co., 57 S. W.

801, 93 Tex. 625, reversing Judgment
(Civ. AiH).) 66 S. W. 97.

Vt. Briggs V. Town of Georgia, 12
Vt 60.

Va. City of lUchmond v. Pember-
ton, 61 S. E. 787, 108 Va. 220.



«« Gregory v. Chicago, R. I. & P. R.
Co., 124 N. W. 797, 147 Iowa, 715,
Ann. Cas. 1012B, 723.



Digitized by



Google



§495



IN8TEUCTION8 TO JURIES



880



of .the parties are too favorable to him, cannot be complained of
by him.*'



G. Power and Duty of Court with Rhsphct to the Modifica-
tion OF, OR THE Substitution of Other Instructions
FOR, Correct Requests

§ 495. Rule that court majr, on granting a correct request, vary
its phraseology
The general rule is, both in civil •• and in criminal cases,** that
instructions need not be given in the exact language in which



«T McNamara y. Macdonough, 102
Cal. 575, 36 P. 941.

«8ir. 8. Continental Imp, Co. r.
Stead, 05 U. S. 161, 24 L. Ed. 403;
Law V. Cross, 1 Black, 533, 17 L. Ed.
185; Clymer v. Dawkins, 44 U. S. (3
How.) 674, 11 L. Ed. 778; (C. C. A.
Cal.) Mountain Copper Co. v. Van
Buren, 133 F. 1, 66 C. C. A. 151; (C.
C. Me.) Pitts V. Whitman, Fed. Cas.
No. 11,196, 2 Story, 609; (C. C. A. Vt.)
Boston & M. R. Co. v. McDuffey, 79
F. 934, 25 C. C. A. 247; (C. C. A. Va.)
Mattiieson Alkali Works v. Mathleson,
150 F. 241, 80 0. C. A. 129 ; (C. C. A.
W. Va.) Southern Bell Telephone &
Telegraph Co. v. Watts, 66 F. 460,
13 C. 0. A. 579.
Ala. Long v. Rodgers, 19 Ala. 321.
Cal. People v. Cox, 155 P. 1010, 29
Cal. App. 419; Jamson v. Quivey, 5
Cal. 490; Conrad v. Llndley, 2 CaL
173.

Conn. Radwick v. Goldstein, 98 A.
583, 90 Conn. 701; Koskoflf v. Gold-
man, 85 A. 588, 86 Conn. 415; Dun-
ham V. Cox, 70 A. 1033, 81 Conn. 268;
Tiesler v. Town of Norwich, 47 A. 161,
73 Conn. 199; Appeal of Livingston,
63 Conn. 68, 26 A. 470.

Dak. Parliaman y. Toung, 2 Dak.
175, 4 N. W. 139, 711.

Ga. Holbert v. Allred, 102 S. B.
192, 24 Ga. App. 727; Atkinson v. F.
S. Dismuke & Bro., 75 S. E. 835, 11
Ga. App. 521; Southern Ry. Co. v.
Reynolds, 55 S. E. 1039, 126 Ga. 657 ;
Southern Cotton Oil Co. v. Skipper,
54 S. E. 110, 125 Ga. 368; Western &
A. R. Co. V. Clements, 60 Ga. 319;
Hammack v. State, 52 Ga. 397; Long
V. State, 12 Ga. 293.



m. Jansen v. Grimshaw, 125 IlL
468, 17 N. E. 850; Chicago & N. W.
Ry. Co. V. Goebel, 119 lU. 515, 10 N. E.
369 ; Clinton Wire Cloth Co. v. Gard-
ner, 99 IlL 151; Needham v. People,
98 lU. 275 ; Hays v. Borders, 1 GU-
man, 46; Bom v. Schrieher, 199 111.
App. 101.

Iowa. State v. Gibbons, 10 Iowa,
117.

:^aii. Rouse v. Downs, 47 P. 982, 5
Kan. App. 549; Reed v. Golden, 28
Kan. 632, 42 Am. R^. 180; Deitz v.
Regnier, 27 Kan. 94; City of Topeka
V. Tuttle, 5 Kan. 311.

Ky. Slusher v. Hopkins, 89 S. W.
244, 28 Ky. Law Rep. 347.

Me. Godfrey v. Haynes, 74 Me. 96
Foye V. Southard, 64 Me. 389; Treat
V. Lord, 42 Me. 552, 66 Am. Dec. 298
Anderson v. City of Bath, 42 Me. 346.
Md. Higgins v. Carlton, 28 Md
115, 92 Am. Dec 666 ; Hall v. Hall, 6
GUI & J. 386.

Mamm. Heuser y. Tileston & Hol-
lingsworth Co,, 119 N. B. 683, 230
Mass. 299 ; Holbrook v. Seagrave, 116
N. E. 889, 228 Mass. 26 ; Tripp v. Taf t,
106 N. E. 578, 219 Mass. 81; O'Leary
V. Boston Elevated Ry. Co., 95 N. E.
85, 209 Mass. 62 ; Stubbs y. Boston &
N. St Ry. Co., 79 N. E. 795, 193 Mass.
513; Percival v. Chase, 65 N. E. 800,
182 Mass. 371 ; Davenport v. Johnson,
65 N. E. 392, 182 Mass. 269; P. P.
Emery Mfg. Co. v. Rood, 65 N. E. 58,
182 Mass. 166; Boston Dairy Co. v.
Mulliken, 175 Mass. 447, 56 N. E. 711 ;
Western v. Bamicoat, 175 Mass. 454,
56 N. E. 619, 49 L. B. A. 612; O'Neil

*0 See note 69 on page 884.



Digitized by



Google



881



BEQUESTS OR PRAYERS FOR INSTRUCTIONS



495



they are requested, although the requests are entirely proper, but



Y. Hanscom, 175 Mass. 313, 66 N. SI
587 ; Black v. Buckingham, 174 Mass.
102. 54 N. B. 494; SulUvan v. Shee-
han, 53 N. E. 902, 173 Mass. 361;
Spanlding v. Jennings, 173 Mass. 65,
53 N. E. 204; Boylan v. Everett, 172
Mass. 453, 52 N. E. 541; Frost v. Cour-
tis, 172 Mass. 401, 52 N. E. 515; Dor-
ey V. Metropolitan Life Ins. CJo., 172
Mass. 234, 51 N. E. 974; Ellis v. Sl-
monds, 47 N. E, 116, 168 Mass. 316;
Noble V. Fagnant, 162 Mass. 275, 38
N. E. 507 ; Commonwealth v. Farrell,
160 Mass. 525, 36 N. E. 475; Breen v.
Field, 159 Mass. 582, 35 N. E. 95;
Turner v. Patterson, 160 Mass. 20, 34
N. B. 1083 ; Norwood v. City of Som-
erville, 159 Mass. 105, 33 N. E. 1108;
Commonwealth v. Moore, 157 Mass.
824, 31 N. E. 1070; O'DriscoU v. Fax-
on, 156 Mass. 527, 31 N. E. 685 ; Merri-
gan r. Boston & A. R. Co., 154 Mass.
189, 28 N. E. 149; Hudson v. Inhabit-
ants of Marlborough, 154 Mass. 218, 28
N. E. 147 ; Weld v. Brooks, 152 Mass.
297, 25 N. E. 719; Parker v. City of
Springfield, 147 Mass. 391, 18 N. B.
70; Inhabitants of Deerfield v. Con-
necticut River R. R., 144 Mass. 325, 11
N. E. 105.

Mioh. Alton V. Meenwenberg, 66
N. W. 571, 108 Mich. 629; I^wis v.
Rice. 27 N. W. 867, 61 Mich. 97.

Bfiniu Anderson v. Foley Bros.,
124 N. W. 987, 110 Minn. 151 ; Smith
V. St. Paul & D. R. Co., 51 Minn. 86,
52 N. W. 1068; Dodge v. Rogers, 9
Minn. 223 (Gil. 209).

Mi«s. George v. State, 39 Miss.
670.

Mo. Grimes v. Cole, 113 S. W. 685,
133 Mo. App. 522; Taylor v. Missouri
Pac. Ry. Co., 16 S. W. 206; Stocke v.
Mueller, 1 Mo. App. 163.

Neb. Meyer v. Shamp, 71 N. W.
57, 51 Neb. 424; Lau v. Grimes Dry
Goods Co., 38 Neb. 215. 56 N. W. 954 ;
Jameson v. Butler, 1 Neb. 115.

N. H. . Kasjeta v. Nashua Mfg. Co.,
58 A. 874, 73 N. H. 22; Elwell v.
Roper, 58 A. 507, 72 N. H. 585 ; Bond
v. Bean, 57 A. 340, 72 N. H. 444, 101
Am. St. Rep. 686 ; Wheeler v. Grand
Trunk Ry. Co., 50 A. 103, 70 N. H.
607, 54 L. R. A. 955; Walker v.
Walker, 64 N. H. 55. 5 A. 460; Clark
V. Wood, 34 N. H. 447.
Inst.to Jubus— 66



N, J. Miller v. Delaware River
Transp. Co., 90 A. 288, 85 N. J. Law,
700, Ann. Cas. 1916C, 166; Pavan v.
Worthen & Aldrlch Co., 78 A. 668, 80
N. J. Law, 667.

N. Y. Sherman v. Wakeman, U
Barb. 254 ; WilUams v. Birch, 19 N.
Y. Super. Ct 299.

N. O. Hall V. Geissell & Richard-
son, 103 S. E. 392, 179 N. C. 657 ; Beds
V. Sylva Tanning Co., 101 S. E. 496,
179 N. C. 123; Hooker v. Norfolk ik
S. R. Co., 72 S. E. 210, 156 N. C. 165;
Harris v. Atlantic Coast Line Bl Co..
43 S. E. 589, 132 N. C. 160; Bethea v.
Raleigh & A. A. L. R. Co., 106 N. C.
279, 10 S. B. 1045; Carlton v. Wil-
mington & W. R. Co., 104 N. C. 365, 10
S. E. 516; Newby v. Harrell, 99 N. C.
149, 5 S. B. 284, 6 Am. St Rep. 503;
Patterson v. Mclver, 90 N. C. 493;
Overcash v. Ritchie, 89 N. C. 384;
Burton v. March, 51 N. C. 409 ; Mar-
shall V. Flinn. 49 N. C. 199 ; Town of
Newbem Com'rs v. Dawson, 32 N. C.
436.

OMo. Ashtabula Rapid Transit
Co. V. Dagenbach, U O. C. D. 307.

Okl. Veseley v. Bngelkemier, 61 P.
924, 10 Okl. 290.

Or. Booth-Kelly Lumber Co. v.
WilUams. 188 P. 213, 95 Or. 476;
State V. Butler, 186 P. 55, 96 Or. 219 ;
Stool V. Southern Pac. Co., 172 P. 101,
88 Or. 350.

P«. Jones V. Greenfield, 25 Pa.
Super. Ct 315; Geiger v. Welsh, 1
Rawle, 349.

R. I. McGowan v. Court of Pro-
bate of City of Newport, 62 A. 571, 27
R. I. 394, 114 Am. St R^. 52.

S. O. State v. Simmons, 100 S. E.
149, 112 S. C. 451; State v. Jones,
88 S. B. 444, 104 S. C. 141 ; Hair v.
Winnsboro Bank, 88 S. E. 26, 103 S.
C. 343 ; Broom v. Atlantic Coast Line
R. Co., 80 S. B. 616. 96 S. C. 368;
Pooler V. Smith, 52 S. B. 967, 73 S.C.
102 ; Edwards v. Wesshiger, 43 S. E.
518, 65 S. C. 161, 95 Am. St Rep. 789.

Tex. Western Union Telegraph Co.
V. Goodson (Civ. App.) 202 S. W. 766;
Gulf, C. & S. F. Ry. Co. v. Davis, 80
S. W. 253, 35 Tex. Civ. App. 285.

XTtali. Speight v. Rocky Mountain
Bell Telephone Co., 107 P. 742, 36
Utah, 483; Hickey v. Rio Grande



Digitized by



Google



§495



INSTRUCTIONS TO JURIES



882



Western Ry. Co., 82 P. 29, 29 Utah,
392.

Vt, Rice V. Bennington County
Sav. Bank. 108 A. 708, 93 Vt 493;
Desmarchier v. Frost, 99 A. 782, 91
Vt. 138 ; CampbeU v. Day, 16 Vt 558.

Wash. Hall v. Northwest Lumber
Co., 112 P. 309, 61 Wash. 351 ; Aver-
buch V. Great Northern Ry. Co., 104
P. 1103, 65 Wash. 633 ; Smith v. Mich-
igan Lumber Co., 86 P. 652, 43 Wash.
402; Gottstein v. Seattle Lumber &
Commercial Co., 7 Wash. 424, 35 P.
133 ; Seattle v. Buzby, 2 Wash. T. 25,
3 P. 180.

WliT. Jones V. Monson, 119 N. W.
179, 137 Wis. 478, 129 Am. St Rep.
1082.

Oonsent to modilloatioii. It was
not error to qualify defendant's re-
quested instruction in giving it, where
the defendant accepted it as qualified.
Tuclcer v. State, 150 S. W. 190, 67
Tex. Cr. R. 510.

ninstratlons of proper iiiodifio»>
tioiui. An instruction that the proof
of certain disputed facts must be "af-
firmative and direct" is a sufficient
compliance with the prayer that it
should be "affirmative and distinct."
Cornelius v. Brawley, 109 N. C. 542,
14 S. E. 78. It is proper to modify
an Instruction which states that,
"while the law presumes all men to
be sane, yet this presumption is over-
come by evidence tending to prove
insanity," so as to make it read, "yet
this presumption may be overcome,"
etc. Jamison v. People, 145 111. 357,
34 N. E. 486. An Instruction "that
the plaintiff must prove his case by a
preponderance or greater weight of
evidence. Therefore, if the evidence
in this case preponderates in favor of
the defendant, or if the evidence falls
to preponderate in ftivor of the plain-
tiff, or if you are unable to say <mi
which side is the greater weight of
the evidence, you should find the is-
sues for the defendant" — is not mate-
rially changed by inserting "on plain-
tilTs case" after the word, "case."
Frank v. Crane, 154 111. App. 643. In
a prosecution for procuring an abor-
tion, it was not error for the court to
modify instructions given at defend-
ant's request by including in the hy-
pothesis on which he would not be guil-.
ty the fact that he did not aid or



assist in fhe act. Cook v. People. 52
N. E. 273, 177 lU. 146. A charge that
the jury is not to decide the case by
sympathy with the plaintiff or ill feel-
ing against railroads, but according
to the law charged and the evidence
heard, is a sufficient answer to a re-
quest to charge that it would be not
only illegal, but disgraceful, for the
jury to be swayed by any outside in-
fluence. Hay V. Carolina Midland
Ry. Co., 41 S. C. 542, 19 S. E. 976.
Where requested instructions contain
a proposition of law depending on
questions of fact, regarding which
there is a material dispute, the court
may qualify his affirmance of the
points requested by telling the jury
that it must determine the disputed
facts. Snyder v. Loy, 4 Pa. Super.
Ct 201, 40 Wkly. Notes Cas. 333.
In an action for breach of a contract
to feed sheep where plaintiff alleged
defendant's delay in constructing cor-
rals, the substitution of the word
"reasonable" for the words **reason-
ably short" in a requested charge
with reference to the time for such
construction was not error. Rea v.
Alfalfa Products Co., 161 P. 708, 53
Mont 90. It was not error to modify
a charge that if the jury believed
that plaintiff purchased a ticket to a
certain station, but remained on the
train and did not get off there, and
did not communicate his intention to
get off at a place further on. to the
conductor, and if the conductor did
not know that plaintiff intended to
leave the train when he did, they
should find for defendant, by substi-
tuting "defendant's servants" for the
word "conductor" where first used,
and "such servant" for "conductor"
where it later appeared; there being
no substantial difference between the
words; "servants" including "con-
ductor." Cornell V. Chicago, R. I. &
P. Ry. Co., 128 S. W. 1021, 143 Mo.
App. 598. There is no ground of
exception to instructions by the court,
stating in general propositions the
law of domicile as applicable to the
facts of the case, though embraced
in a different form from the In-
structions asked for ; It not appearing
that the judge made any improper
reference to the evidence applicable
to them, or that the jury failed to ap-



Digitized by



Google



883



REQUESTS OR PRAYERS FOR INSTRUCTIONS



§495



predate them and apply them to the
case. Wilson v. Terry, 11 Allen
(Masa) 206. Defendant having re-
quested an instruction that if the
jury believed certain facts relative to
the arrest as testified to by the magis-
trate defendant could not be held re-
sponsible, it was not error to give the
instruction, with the omission of the
words "as testified to by the justice."
Lovidc V. Atlantic Coast Line R. Co.,
40 S. E. 191, 129 N. O. 427. A request
to charge, in effect, that defendant
could not complain of a fraud, if at
the time he executed the note he en-
tertained a settled conviction that he
had been defrauded, is satisfied by a
charge that if defendant Imew when
he signed the note that he had been
defrauded plaintiff could recover.
Smith V. McDonald, 102 N. W. 738,
139 Mich. 225. Where plaintiff claim-
ed that a conveyance of defendant's
goods was in fraud of creditors, and
requested a charge that, in determin-
ing whether the purchaser knew of
the debtor's intention to defraud,
facts coming to the notice of the pur-
chaser, which would put a prudent
man on inquiry which, if followed,
would lead to the knowledge of the
fraud, were evidence from which the
jury might infer knowledge of such
fraud, and the court modified instruc-
tion by striking out the words, **from
which the jury may infer that the
purchaser had knowledge of such
fraud," and inserting, "which the ju-
ry may consider in determining
whether the purchaser had knowl-
edge of such fraud," the modification
was not error, since the difference in
meaning was so unsubstantial that the
jury could not have been misled there-
by. John Deere Plow Co. v. Sullivan,
59 S. W. 1005, 158 Mo. 440. Where a re-
quest to charge is simply that the ju-
ry determine whether or not a mar-
ried woman knew that her husband
was carrying on business as her
agent, it is a compliance with the re-
quest for the court to go further, and
charge that such carrying on of the
business must be with her knowledge,
consent, and approval. Reed v. New-
comb, 64 Vt 49, 23 A. 589. The
court's modification of a requested in-
struction, that an employ^ of full age
and ordinary intelligence assumes



the risk of dangers which are "open
and plain to his sight," by adding the
words "and understanding," does not
change its meaning. Chicago, R. I.
& P. Ry. Co. V. Kinnare, 60 N. B. 57.
190 IlL 9, affirming judgment 91 111.
App. 508. Upon an issue as to the
Diligence of a defendant railroad
company in failing to properly inspect
a car, a defect in which caused plain-
tiff's injury, it was not error for the
court to modify a requested instruc-
tion, so as to confine the considera-
tion of the jury to the inspection of
the particular car in question. Illi-
nois Cent R. Co. v. Coughlin (C. C.
A. Tenn.) 145 F. 37, 75 C. O. A. 262.
An instruction that testimony as to
other defects in the sidewalk near the
place where plaintiff was injured was
admitted for the purpose of showing
notice to the dty is a substantial com-
pliance with a request to charge that
the consideration of such testimony
should be limited to the subject of
notice. Moore y. City of Kalamazoo,
109 Mich. 176, 66 N. W. 1089. In an
action against a municipal corpora-
tion for maintaining a dam, so as to
cause plaintiff's land to be overflowed,
defendant claimed that the right to
flow the land had been dedicated to
the public, and plaintiff requested an
instruction that the fact that hunting,
fishing, or boating were done over or
near plaintiff's overfiowed lands was
alone not enough to show dedication,
and the court gave the instruction,
adding, "This means, of course, just
what it says — that the fact of hunt-
ing or fisdilng upon plaintifTs land, in
and of itself, is not enough to show
that there had been any dedication."
Boye V. City of Albert Lea, 100 N.
W. 642, 93 Minn. 121. Submitting to
the jury the question whether a so-
ciety arranging a bicycle race was
guilty of negligence in permitting a
sulky into which one of the riders ran
to be standing on the track was a
sufficient compliance with a request to
charge that the society was not under
the duty to keep the whole track
clear, but only so much as was neces-
sary for the race. Benedict v. Union
Agricultural Soc., 52 A. UO, 74 Vt 91.
A response to a request to charge
that, if deceased's negligence contrib-
uted in the slightest degree to the



Digitized by



Google



§495



INSTRUCTIONS TO JITBIB8



884



accident, plaintiff could not recover,
wherein the court stated tliat, if de-
<*eased's negligence contributed at all,
it would defeat the action, was not
erroneous In emphasizing the word
"contributed." Predmore v. CJonsum-
ers* Light & Power Co., 91 N. Y. S.
118, 99 App. Div. 551. In replevin,
where defendant claimed property
had been abandoned, action of court
in defining term "abandon," used in
requested instruction given for de-
fendant, was not an alteration of
such instruction. St Louis Dairy Co.
V. Northwestern Bottle Co. (Mo. App.)
204 S. W. 281. In an action for mlUt
sold and delivered, defendant request-
ed the court to rule that if any credit
was given to defendant's sons, to
whom the millj was delivered, a prom-
ise by defendant to pay for it would
be void unless in writing There was
evidence that defendant had signed
and delivered to plaintiff a writing,
"Charge millt to me, and I will pay
for it" The court instructed the ju-
ry that if they found the credit was
given to the sons, and that defendant
merely contracted to be responsible
for the bill, that was not the contract
sued on, and plaintiff could not re-
cover ; adding that the alleged writing
was not a contract of guaranty. Bos-
ton Dairy Co. v. Mulllken, 56 N. B.
711, 175 Mass. 447. The modification
of a charge requested by plaintiff in
an action for trespass, one defense
to which was adverse possession, by
the insertion of the word **mere" be-
fore the word "cultivation" in the
statement that the cultivation of the
land would not be an adverse exclu-
sive holding, made no change in the
meaning. Southern Realty & Inv. Co.
V. Keenan, 83 S. B. 39. 99 S. C. 200.
Where the mother of certain wit-
nesses was a defendant in an action of
ejectment, it was not error for the
court to call attention to such fact as
qualifying a charge, given by defend-
ants* request that such witnesses
were not interested parties. Fitz-
patrick v. Graham (C. C. A. N. Y.) 122
F. 401, 68 C. C. A. 619.

In Texas, there are early decisions
holding that the practice of making
alterations in requested instructions
which are correct is improper. Tre-



zevant y. Rains (Tex. Oiv. App.) 25 S.
W. 1092.

«» U. S. (C. C. A. N. Y.) Fraina v.
United States, 255 F. 28, 166 C. C. A.



Online LibraryWest Publishing Company Henry Edward RandallA treatise on the law of instructions to juries in civil and ..., Volume 1 → online text (page 124 of 145)