Later courts went against this
Overruled by Ponca City Ice Co. v. Robertson, 67 Okla. 86 (1917)
Co. v. Milam, 45 Okla. 742, 147 Pac. 314, was overruled in Ponca City Ice Co. v. Robertson, 67 Okla. 86, 169 Pac. 1111.
The opinion
KANE, C. J.
(dissenting). I cannot concur with, my Brothers in the reversal of the judgment rendered by the court below. Whilst I have no desire to' be classed among the “judicial modernists,” I am not in favor of keeping the law of to-day tied to the law of a hundred years ago after it has been unleashed by the legislative department. Section 6005, Rev. Laws 1910, provides:
“No judgment shall be set aside or new .trial granted by any appellate court of this state in any oase, civil or criminal, on the ground of misdirection of the jury or the improper admission or
*753
rejection of evidence, or ¡as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after ¡an examination of the entire record, it appears (thia.t the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”
This statute is entirely ignored in the majority opinion. The judgment is reversed solely “on It'he ground ¡of misdirection of the jury,” but the opinion is quite silent as to whether “in the opinion of .the court, * * * after an examination of the entire record, it ¡appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory light.” In my -opinion, after -an examination of the- entire -record, it does not appear that the error -complained of has probably resulted in -a miscarriage of justice, or constitutes a substantial violation of ¡a constitutional or statutory right. Moreover, by charge No. 17 the jury was correctly instructed as to the duty of the deceased to- use -that degree of care which an ordinarily -careful and prudent person would h-ave used in the circumstances, -and the consequences of a failure -to- exercise such care upon the plaintiffs right to recover. If instruction N-o-. 11, -upon which the reversal is based and instruction No. 17 defining contributory negligence, -and -the last clear chance were consolidated into one instruction and given by the trial co-urt, we then wo-uld -have a fair conservative statement of the law governing the points involved and probably the judgment wo-uld not 'have been reversed. In my judgment, appellate courts should not be hypercritical -as to- the form or style -and arrangement of instructions given by trial courts. If -as a whole they are reasonably olear and unambiguous -and state the law with -substantial fairness, .that is all that should be required ¡of them. Since a very early day tire rule in this jurisdiction has been that:
“It is not required that the entire’ law of the case shall be
*754
stated in a single instruction, and it is therefore not improper to state the la,w, as applicable to particular questions, or particular parts of the case, in- separate instructions, and if there is no conflict in the law as stated in different instructions, and all the instructions considered as a series present the- law applicable to the ease fully -and accurately, it is sufficient.”
A., T. & S. F. Ry. Co. v. Marks,
11 Okla. 82 , 65 Pac. 996 ;
Snyder v. Stribling,
18 Okla. 168 , 89 Pac. 222 ;
Grant et al. v.
Milam, 20 Okla. 672 , 95 Pac. 424 .