Bughman v. Byers , 9 Sadler 128 ( 1888 )

Opinion by

Me. Justice Sterrett:

An examination of this record has led us to the conclusion that some of the learned judge’s comments on portions of plaintiff’s testimony were calculated to unduly weaken its effect and thus mislead the jury. After saying: “Mr. McBoberts and those who agree with him are of opinion they have found the true line by measuring from the hickory that they claim is evidently a corner,” he added: “Yet there is no mark there.” This latter statement appears to be in conflict with the evidence.

Three of plaintiff’s witnesses, all of whom are experienced surveyors, testified as to the exact location of the hickory tree corner; and one of defendant’s witnesses, Mr. McOully, said he believed “the hickory stump to be the true comer at that point; have always believed that; have been over this locality half a dozen times. I have run different marked lines in to that point.”

Another witness said in substance, there was no dispute as to the line from the hickory. If the testimony tended to prove anything, it was the location of the hickory corner designated by the stump of what appears to be the original hickory, and the fact that the line fence between the Liberty farm and the “L”i' warrant, as it is called, begins at that stump. We think, therefore, that the remark complained of was incorrect and misleading.

Plaintiff also introduced evidence for the purpose of fixing the location of comer at the Byers lot, and some of his -witnesses testified to having found a white oak stump at a point corresponding both in course and distance to the position of the white oak called for in tbe patent, and gave it as their opinion that it was the stump of that tree, etc. Referring to the testimony of those witnesses the learned judge remarked: “It would be a marvel in surveying if they found right at the end of the distance called for in the original survey the stump of the identical tree,” etc. In addition, to its inaccuracy as a general proposition, this assertion was calculated to unduly weaken the effect of plaintiff’s evidence on that subject. Other remarks, complained of in the first and second specifications, had a similar tendency.

In his certificate the learned judge says: “The foregoing is a very inadequate and, in some respects, an incorrect report of the charge of the court The stenographer, without any knowledge of the testimony, or maps or papers, Was called in to take down the charge. A considerable portion of the explanations and instructions to the jury were-given with reference to a map in evidence which was before the jury and referred to by the court during the charge.”

We have no doubt as to the correctness of this criticism. If we had been furnished with an accurate report of the charge as delivered to the jury, it would probably appear that the instructions, as a whole, were entirely free from error; but we must take the record as we find it, and upon that we are of opinion that the plaintiff has just reason to complain of the manner in which this case was submitted to the jury.

Judgment reversed and a venire facias de novo awarded.