The opinion
Rehearing denied May 19, 1931
On Petition eor Rehearing
( 298 P. 1065 )
ROSSMAN, J.
The petition for a rehearing is accompanied by an unusually capable and thorough brief which argues again the various assignments of error brought before us by this appeal, and assembles in a very orderly manner the evidence applicable to the several issues of fact. The intelligent labor once more expended upon this cause by the plaintiff has prompted us to again bestow upon it careful attention.
Much of plaintiff’s brief is devoted to an effort to show that the record contains evidence capable of supporting a finding that the defendant Flynn ■ was guilty of gross negligence. We have been satisfied from the outset that such evidence is present in the record, but the material point is that the record also contains substantial evidence showing that Flynn’s car was not being operated in a grossly negligent manner; in fact,
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if the testimony of Flynn and his witnesses is true his car was being operated in a prudent manner. Such being the situation, the issue created by the plaintiff’s charge, of gross negligence was for the determination of the jury.
The brief accompanying the petition once more assails the instruction which defined gross negligence, and claims that the circuit court’s definition of that term was not only ambiguous but could have led the jury to believe that gross negligence meant the absence of all care. ' ..
The purpose served by an instruction is to impart to the jury the necessary information in regard to the law so that they may be informed upon the rules of conduct applicable to the. parties when the asserted claim arose. In construing the meaning of an instruction the literalities of language may be disregarded, and the instruction should be construed in the manner in which it must have been understood by the jurors, as practical men, in the light of the other portions of the charge, the evidence, the issues asserted during the course of the trial, and the circumstances of the trial. If the instruction is capable of supporting two meanings, one being the result of the ingenuity of counsel expended at leisure and the other the meaning which the jurors obviously must have placed upon it, the former will be discarded and the latter will be accepted as the proper one. It seems to us, as stated in our previous decision, that the jurors, as practical men, could not reasonably have understood the court’s definition of gross negligence to mean the absence of all care. Even if such a meaning could have been drawn from the definition, other parts of the charge which stated the issues developed by the pleadings and the eircum
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stances under which a verdict for either party was returnable, readily showed it was not meant. It is true that a portion of the definition employed by the court does not contain technical precision of language, but such niceties are not to be expected where the instructions are oral and follow quickly the close of the evidence and counsels’ arguments. Moreover, the essential objective to be achieved is not the use of some particular words, but the conveyance of the correct, understanding of the law. We believe that the instructions fairly imparted to the jury the idea that gross negligence meant not only an absence of the due care required by the circumstances but also a degree of negligence materially greater than that which constitutes ordinary negligence. Such being true, appellant’s brief discloses no reversible error.
The other matters again argued in the additional brief likewise fail to disclose to us any reversible error.
We sincerely regret the death of plaintiff’s son, who was a bright, promising child, but, since no error is manifest to us, it follows that the petition for a rehearing is deniéd.
Bean, C. J., Band and Kelly, JJ., concur.