CUNNINGHAM, J.
(After Stating the Facts as Above).— The appellant assigns as error the overruling of its demurrers to the complaint for the reason both chapter 6, title 14, of the Revised Statutes of Arizona of 1913, Civil Code, upon which the action is based, and the constitutional mandate, section 7 of article 18 of the state Constitution, in obedience to which said chapter 6 was enacted, violate section 1 of the Fourteenth Amendment to the Constitution of the United States, in that the employers’ liability law, said chapter 6, title 14, attempts to deprive the defendant of its property without due process of law by imposing unlimited liability on it as an employer for personal injuries sustained by an employee while in its employ in cases where defendant has been guilty of no fault, want of care, or neglect of duty; and because the employers’ liability law contravenes and is in violation of sections 5 and 7 of article 18 of the Constitution of the state of Arizona, in that said statute attempts to give plaintiff the right to recover judgment for personal injuries notwithstanding the injuries for which the judgment is sought were contributed to and in part caused by plaintiff’s negligence, and attempts to deprive defendant of' the right to wholly defeat this action by showing that said injuries were contributed to and in part caused by plaintiff’s own negligence.
The questions of the constitutional validity of the employers ’ liability law are raised in a number of different objections. The defendant assigns as error the admission and rejection of evidence and misconduct of the trial judge during the trial of the cause, working a prejudice and resulting in an excessive verdict.
The appellant groups the assignments of error under four divisions covering the points of law raised in the cause: First, the employers’ liability law, chapter 6, title 14, under which the action is brought, is unconstitutional and void; second, that the plaintiff failed to make out a case warranting recovery under the employers’ liability law; third, error in admitting and excluding evidence and in giving instructions, and, fourth, an excessive verdict.
Under the first division the case of Inspiration Consolidated Copper Co. v. Mendez, ante, p. 151, 166 Pac. 278, on the authority of New York C. R. Co. v. White, 243 U. S. 188, 61 L. Ed. 667, 37 Sup. Ct. Rep. 247, holds to the opinion [186]*186that the employers’ liability law is valid within the police powers of the state, and does not come into conflict with the Fourteenth Amendment of the Constitution of the United States; and that such liability law is a valid, subsisting enactment and is a law of the state of Arizona.
Appellant contends that chapter 6 of title 14 is void, for the reason its terms conflict with sections 5 and 7 of article 18 of the state Constitution. Section 5 is that:
“The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury. ’ ’
This section does not restrict the power of the legislature to modify or abolish the defense of contributory negligence. The restriction contained in the section is clear that no law shall be enacted which attempts to make the defenses of contributory negligence or assumption of risk, when interposed, determinable by the courts as matters of law, but such defenses are made to depend upon facts when they are properly interposable, and, interposed, they are required to be established by a preponderance of the evidence to the satisfaction of the jury. Whether the plaintiff’s negligence contributed to the wrong, or whether the plaintiff assumed the risk and danger from which the wrong arose, must be determined as a fact from the evidence by the jury.
Section 7 commands the legislature to enact an employers’ liability law, by the terms of which any employer shall be liable for the death or injury of workmen employed in all hazardous occupations named, and any other industry designated by the legislature, whenever such death or injury is caused by any accident due to a condition or conditions of such occupation, except when such death or injury has been caused by the negligence of the employee killed or injured. The only restriction placed upon the legislative power in carrying out said constitutional mandate found in the section of the Constitution is the exception, viz.:
Liability is incurred “in all eases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.”
In all other cases the legislative power is unlimited by said section 7.
A careful examination of chapter 6 of title 14 discloses no violation of such limitation on the power of the legislature. [187]*187The exception is carefully preserved in paragraph 3154 of the statute. If the injury resulted from an accident arising out of and in the course of labor, service, and employment in a hazardous occupation, and was due to a condition, or conditions, of such occupation or employment, and was not caused by the negligence of the employee the liability to damages exists. If, however, the injury was caused by negligence to which the injured workman contributed, the liability of the employer remains to an amount of the full damages, less the amount of damages attributable to the employee’s negligence. In other words, the damages are to be apportioned to the parties, employer and employee, as the negligence, attributable to the one is to the negligence attributable to the other. Paragraph 3159, Civil Code of Arizona 1913. “The fact [appearing] that the employee may have been guilty of con-tributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee, ’ ’ are the words of the statute. The statute is in full harmony with the constitutional mandate and with its restriction.
The defendant set forth in its answer the contributory negligence of the plaintiff, consisting of the manner in which the plaintiff was performing his duties at the time of the accident, but defendant’s answer does not set forth any claim for a reduction of damages by reason of such negligence, but claims such contributory negligence as a complete, not a partial, defense to the action. The answer is evidently interposed upon the theory of the common-law rule of contributory negligence in bar of the cause of action. Under the provisions of chapter 6, supra, nothing less than the sole negligence of the employee injured will bar an action based on the statute for damages. Negligence of the employee contributing to the injury may serve to reduce the amount of the recovery, but will not bar recovery.
The defendant, having in its answer admitted that its negligence in part was the cause of the damages, by setting forth a charge of contributory negligence against the plaintiff, authorized a verdict against defendant in any event. The matters left open for inquiry were the amount of the damages the plaintiff was entitled to recover as measured by the allegations of the complaint and the evidence, and whether [188]*188the accident was due to a condition or conditions of the employment and sueh as is unavoidable.
Free access — add to your briefcase to read the full text and ask questions with AI
CUNNINGHAM, J.
(After Stating the Facts as Above).— The appellant assigns as error the overruling of its demurrers to the complaint for the reason both chapter 6, title 14, of the Revised Statutes of Arizona of 1913, Civil Code, upon which the action is based, and the constitutional mandate, section 7 of article 18 of the state Constitution, in obedience to which said chapter 6 was enacted, violate section 1 of the Fourteenth Amendment to the Constitution of the United States, in that the employers’ liability law, said chapter 6, title 14, attempts to deprive the defendant of its property without due process of law by imposing unlimited liability on it as an employer for personal injuries sustained by an employee while in its employ in cases where defendant has been guilty of no fault, want of care, or neglect of duty; and because the employers’ liability law contravenes and is in violation of sections 5 and 7 of article 18 of the Constitution of the state of Arizona, in that said statute attempts to give plaintiff the right to recover judgment for personal injuries notwithstanding the injuries for which the judgment is sought were contributed to and in part caused by plaintiff’s negligence, and attempts to deprive defendant of' the right to wholly defeat this action by showing that said injuries were contributed to and in part caused by plaintiff’s own negligence.
The questions of the constitutional validity of the employers ’ liability law are raised in a number of different objections. The defendant assigns as error the admission and rejection of evidence and misconduct of the trial judge during the trial of the cause, working a prejudice and resulting in an excessive verdict.
The appellant groups the assignments of error under four divisions covering the points of law raised in the cause: First, the employers’ liability law, chapter 6, title 14, under which the action is brought, is unconstitutional and void; second, that the plaintiff failed to make out a case warranting recovery under the employers’ liability law; third, error in admitting and excluding evidence and in giving instructions, and, fourth, an excessive verdict.
Under the first division the case of Inspiration Consolidated Copper Co. v. Mendez, ante, p. 151, 166 Pac. 278, on the authority of New York C. R. Co. v. White, 243 U. S. 188, 61 L. Ed. 667, 37 Sup. Ct. Rep. 247, holds to the opinion [186]*186that the employers’ liability law is valid within the police powers of the state, and does not come into conflict with the Fourteenth Amendment of the Constitution of the United States; and that such liability law is a valid, subsisting enactment and is a law of the state of Arizona.
Appellant contends that chapter 6 of title 14 is void, for the reason its terms conflict with sections 5 and 7 of article 18 of the state Constitution. Section 5 is that:
“The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury. ’ ’
This section does not restrict the power of the legislature to modify or abolish the defense of contributory negligence. The restriction contained in the section is clear that no law shall be enacted which attempts to make the defenses of contributory negligence or assumption of risk, when interposed, determinable by the courts as matters of law, but such defenses are made to depend upon facts when they are properly interposable, and, interposed, they are required to be established by a preponderance of the evidence to the satisfaction of the jury. Whether the plaintiff’s negligence contributed to the wrong, or whether the plaintiff assumed the risk and danger from which the wrong arose, must be determined as a fact from the evidence by the jury.
Section 7 commands the legislature to enact an employers’ liability law, by the terms of which any employer shall be liable for the death or injury of workmen employed in all hazardous occupations named, and any other industry designated by the legislature, whenever such death or injury is caused by any accident due to a condition or conditions of such occupation, except when such death or injury has been caused by the negligence of the employee killed or injured. The only restriction placed upon the legislative power in carrying out said constitutional mandate found in the section of the Constitution is the exception, viz.:
Liability is incurred “in all eases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.”
In all other cases the legislative power is unlimited by said section 7.
A careful examination of chapter 6 of title 14 discloses no violation of such limitation on the power of the legislature. [187]*187The exception is carefully preserved in paragraph 3154 of the statute. If the injury resulted from an accident arising out of and in the course of labor, service, and employment in a hazardous occupation, and was due to a condition, or conditions, of such occupation or employment, and was not caused by the negligence of the employee the liability to damages exists. If, however, the injury was caused by negligence to which the injured workman contributed, the liability of the employer remains to an amount of the full damages, less the amount of damages attributable to the employee’s negligence. In other words, the damages are to be apportioned to the parties, employer and employee, as the negligence, attributable to the one is to the negligence attributable to the other. Paragraph 3159, Civil Code of Arizona 1913. “The fact [appearing] that the employee may have been guilty of con-tributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee, ’ ’ are the words of the statute. The statute is in full harmony with the constitutional mandate and with its restriction.
The defendant set forth in its answer the contributory negligence of the plaintiff, consisting of the manner in which the plaintiff was performing his duties at the time of the accident, but defendant’s answer does not set forth any claim for a reduction of damages by reason of such negligence, but claims such contributory negligence as a complete, not a partial, defense to the action. The answer is evidently interposed upon the theory of the common-law rule of contributory negligence in bar of the cause of action. Under the provisions of chapter 6, supra, nothing less than the sole negligence of the employee injured will bar an action based on the statute for damages. Negligence of the employee contributing to the injury may serve to reduce the amount of the recovery, but will not bar recovery.
The defendant, having in its answer admitted that its negligence in part was the cause of the damages, by setting forth a charge of contributory negligence against the plaintiff, authorized a verdict against defendant in any event. The matters left open for inquiry were the amount of the damages the plaintiff was entitled to recover as measured by the allegations of the complaint and the evidence, and whether [188]*188the accident was due to a condition or conditions of the employment and sueh as is unavoidable.
The appellant complains that the amount of damages found is excessive and out of all proportion to the nature, extent, and seriousness of the injury, to the loss of time, wages, or future earning capacity, to the amount necessary to effect a recovery, to his station in life, and to his pain and suffering. No complaint is made that the evidence does not sustain the verdict. The specific complaints are made that the jury asked questions of witnesses during the progress of the trial; and the members of the jury were permitted to and did examine the plaintiff’s injured hand, and touched and pressed his wounded fingers, and the members of the jury were thereby prejudiced, which prejudice resulted in a verdict for excessive damages.
With regard to the first complaint made, the abstract of record discloses that counsel for defendant invited the jury to ask questions of witness Massey. Thereafter the jurors freely asked questions of other witnesses. The record discloses no objection was offered by the defendant to any question asked by any juror of any witness. The practice of allowing attorneys, parties, the judge, and jurors to examine witnesses in a disorderly manner has a tendency to break down the decorum becoming the sanctity of a trial, and should be discouraged. The proper dignity of the court requires orderly procedure in a trial of a cause to be strictly observed. The liberty or property of litigants is involved in the result of every lawsuit, and the trial of such rights may result in tragedy to some interested human being. Certainly a tragedy results from error committed, never comedy. The purpose of a lawsuit is to determine the exact rights of the parties thereto and enforce such exact rights: The wisdom of ages of experience has served to teach our profession that the observance of the prescribed rules of procedure more nearly discover the exact rights of parties than haphazard, disorderly procedure. Not every departure from orderly trial procedure justifies a reviewing court in reversing a judgment because of irregular trial procedure. The irregular procedure must have prejudiced the rights of the party complaining before’ an appellate court is justified in disturbing a judgment. We-must presume that no harm befell the defendant by reason of the many questions asked the witnesses on this trial, for [189]*189the reason the defendant first invited the ashing of the questions, and at no time during the trial objected to that form of procedure.
The appellant contends that the questions asked the witnesses by the jurors conclusively indicate a prejudice against this defendant, inducing an excessive verdict for damages. The nature of the questions called for answers giving information covering a wide field of inquiry, and were not confined to testimony bearing upon the amount of damages. The questions were largely confined to detail matters connected with the knowledge of the witness with regard to which he had testified, the credibility of the witness, and his means of knowledge of the matter with respect to which he gave testimony. The jurors had a very good reason to test the witness’ means of knowledge of these matters and the test given indicates no prejudice against defendant. This particular matter was not insisted upon as a ground for a new trial, and is first raised on this appeal. For that reason the objection must be overruled. The verdict does not conclusively appear to have been reached through prejudice and bias, nor induced by passion and prejudice.
The appellant contends that by permitting the jurors to examine plaintiff’s wounded hand and fingers, and during such examination to squeeze and press his hand for the purpose of discovering the present sensitive condition of the fingers, was error, and resulted in causing the jury to return a verdict for excessive damages. The appellant nowhere contends that the evidence thus gained by the jury was false. If as a fact the plaintiff’s wounds remained sensitive and prevented plaintiff from earning a living, and the jury ascertained that fact from personal physical examinations and by experimenting with the wound, no harm resulted to appellant simply by the use of the means complained of in arriving at the fact. ■ Appellant did not object to the examinations when being made by the jury, and cannot now complain of the character of the evidence used to establish the fact.
While the record discloses many departures from the ideal trial of a lawsuit, these departures were consented to, acquiesced in, submitted to, or indulged, by appellant without objection, and do not appear affirmatively upon the record to have worked a prejudice to appellant’s rights. The verdict returned is large in amount, but that matter lay with the [190]*190jury. No question is made that the verdict is not sustained hy substantial evidence.
Upon the whole ease I am of the opinion the record contains no reversible error. Consequently the judgment must be affirmed.