St. Louis S. F. R. Co. v. Wilson , 32 Okla. 752 ( 1912 )

As to the first assignment, inasmuch as the error complained of in instruction No. 5 was presented in the motion for a new trial, we will consider the first and third assignments together, inasmuch as they both go to what seems to us to be the decisive question involved; namely, the error in instruction No. 5. Said instruction reads as follows:

"The court instructs you that where the plaintiff asks damages from a railroad company for negligence in carrying and delivering cattle shipped over its line, alleging that it had orally agreed to carry and deliver the cattle on certain conditions, and the railroad company admits the receipt and shipment of the cattle, but alleging that they were carried under a written contract, the conditions of which had not been complied with by plaintiff, and proof is offered on the one hand that the contract of shipment was oral, and upon the other that it was written, and which tended to show actionable negligence under either theory, the plaintiff can recover damages sustained as measured by the agreement established by the evidence."

This instruction, we think, was clearly an invasion of the jury's province to determine from the evidence whether the shipment in question was under an oral or a written contract, and to determine from the evidence and all the circumstances whether there had been negligence on the part of the plaintiff under whichever contract they found from the evidence the shipment was made. There was an issue raised by the pleadings as to whether the shipment was under an oral or a written contract. It was for the jury to determine from the evidence under which contract the shipment was made, and, having determined same, it was within their province to determine from the evidence and from all the circumstances whether there had been negligence on the part of defendant. Having done this, should they have found that defendant was guilty of negligence, it was then within their scope of authority to determine from the evidence the amount of damages to which plaintiff was entitled.

This instruction has a tendency to show to the jury what the court thought about the evidence — a thing which courts should carefully avoid. There was an issue as to facts which would constitute negligence. Whether there was negligence could be determined only from the evidence, and for the court to say the evidence tends to show actionable negligence under either theory we cannot say how far the jury was influenced by such language. The evidence was all in at that time. The court evidently based this statement upon the weight of the evidence; drew such conclusion from all the evidence. Such language impresses us with the belief that the court thought negligence had been proven. The jury may have had the same impression. They would have been justified in drawing such inference. They might have reached a different conclusion had the court not used this language. Had the court said, "The evidence does not tend to show negligence under either theory," the effect would readily be seen. Yet the principle is the same. The court is not authorized to say the evidence does or does not prove the fact in issue, and, when it does say either, the jury will invariably follow such suggestion.

As was said by the court in Heithecker v. Fitzhugh,41 Kan. 50, 20 P. 465:

"In trials by jury, courts ought to be very careful not to impose an opinion as to the facts in dispute, for it is well recognized that juries have great respect for the opinions of the trial courts, and, where such opinions are clearly expressed, a jury rarely if ever returns a verdict in opposition to such expressed opinion."

The syllabus in this case is as follows:

"A division of function between the court and jury is essential to the safe administration of justice, and a new trial will always be granted where the judge interferes with the lawful province of the jury to the prejudice of the party complaining."

In Davis v. Gerber, 69 Mich. 246, 37 N.W. 281, the court says:

"The court may always tell the jury, when he shall deem it proper or necessary, for what purpose certain testimony was received, but it is not proper for the court to say to them, after the evidence is in, what that testimony tends to show or prove unqualifiedly, or without submitting to them in the same the question of its credibility. Whether the testimony does or does not tend to prove any particular fact depends entirely whether the jury believes the testimony, and its credibility is for the jury always and not for the court; and, so far as the foregoing charges pass upon the credibility of the testimony, they are erroneous."

This doctrine is too old and well settled and sound to need any citation of authorities. But counsel for defendant in error seek to justify the instruction in question on the ground that it was taken verbatim from the syllabus of Cornelius v. A., T. S. F. Ry. Co., 74 Kan. 599, 87 P. 751. From reading this case we find it true that the language of the syllabus is the same as the language of the instruction in the case at bar. In fact, the two cases are very similar in every respect. Practically the same issues are involved.

But the legal proposition announced in the syllabus of the Cornelius case is one deduced from a given state of facts; it is based upon a condition of facts assumed to exist or to have already been found to exist, and, while we concede it to be correct as an abstract proposition of law, yet when this language is addressed to a jury to be applied to a state of facts yet to be found — facts yet to be determined by the jury from the evidence which it has heard — it is readily seen how easily the jury might be led to believe from such language that the court thought the evidence sufficient to establish such fact. This is wherein the error in the instruction consists. Such language is liable to impress the jury with the estimate which the court places upon the credibility of the witnesses. It is to this extent an invasion of the jury's exclusive province to determine the credibility of the witnesses and the weight to be given their testimony.

It is further contended by defendant in error that the language of this instruction is modified by, and the probable harmful effect removed by, other paragraphs of the court's charge. But from a study of the entire charge, we fail to find this contention supported.

It is our opinion that the judgment should be reversed, and the cause remanded.

By the Court: It is so ordered.