Freeman

This is an action for damages for personal injuries suffered by plaintiff Anna B. Freeman because of, the alleged concurring negligence of the defendants. The cause was tried by a jury and judgment went against both defendants. Defendant Cramer alone appeals.

It is contended by appellant and conceded by respondent that the trial court erred in giving the following instruction to the jury: “In determining .what a reasonable and prudent man would do under the circumstances you will remember that presumably a jury is composed of such reasonable and prudent persons, and you may each ask yourself, did the defendants do, or fail to do, anything which under the circumstances, I would not have done or would have done.” It is plain that this instruction does not state the law. If it is to be presumed that every jury is composed of reasonable and prudent persons, that is far from saying that every member of a jury is actually reasonable and prudent. So to say would be to speak counter to the teachings of experience and to discredit the truth of the classic anecdote concerning the eleven unreasonable jurors whom, the reasonable twelfth could not convince. The presumption mentioned in the…