Spensley v. Lancashire Insurance , 62 Wis. 443 ( 1885 )

Cassoday, J.

The defendant’s motion to remit the record and order the trial judge to incorporate the evidence taken into the bill of exceptions is denied, with $10 costs. As the only errors complained of are found in the charge to the jury, the trial judge very properly declined to incumber the record by making such evidence a part of it. It is diffi.cult to see how the defendant could have been benefited by including it, for unless error appears of record the presumptions are always in favor of the judgment. It is quite common to remit the record to enable the trial judge to correct some mistake or inadvertence; but where it is sought to' coerce such judge, he should at least have a hearing as upon mandamus. The view we have taken of the case, however, renders it unnecessary to consider that question.

The nature of the case was so fully stated, and the substance of the evidence so fully given, in the report of the case on the former appeal (54 Wis. 433), that no repetition is here deemed necessary. A large portion of the charge upon the last trial is given in the above statement, and hence we shall confine this opinion to the consideration of such portions of the charge as have been criticised by counsel.

It is urged that the trial court gave undue prominence to the expert witnesses and their testimony in the case. It should be remembered, however, that the fact sought to be proved — the presence or absence of lightning as an agency in the destruction of the property — was incapable of direct, positive testimony, but dependent wholly upon the circumstances attending the destruction and the opinions of experts. It seems to us that the charge, on the whole, fairly presented the nature, value, and weakness incident to expert testimony. Under the ruling of this court, the presence or absence of lightning, as an agency in the destruction of the property, was a question of fact for the jury, and hence all must abide their determination, unless material error has intervened. Viewing the charge as indicated, we shall confine what we say to that portion of it upon which counsel for the plaintiff seem to rely most confidently.

Exception is taken because the court charged the jury “that although the preponderance of the evidence is not always determined by the number of witnesses, still, in a case where a question is to be determined by the testimony of men of great scientific attainments, other things being• equal, the greater number would carry greater weight; that' is, the testimony of eight or nine such witnesses would be entitled to greater weight than that of two. . . . But in this case it is your province to give such weight to the testimony of the experts, when viewed in connection with all the other evidence in the case, as you think and believe it should receive.” In support of this objection, counsel rely upon Ely v. Tesch, 17 Wis. 202; Bierbach v. Goodyear Rubber Co. 54 Wis. 208. In each of these cases it was held error to instruct the jury, in effect, that where all the witnesses were of equal credit, and those on one side in conflict on a particular question with those on the ot-her, the side having the greater number of such witnesses had the greater weight of evidence upon such question. The vice of such error is stated by Mr. Justice Lxqir in the last case cited: “It ignores everj’’ condition but that of credibility, whereas there are other conditions which should be considered in framing a rule on that subject.” Several witnesses may be equally credible, and yet their opportunities for knowing, their capacity for comprehending, their attention to the facts at the time, and their ability to hold the same in the memory, and many other things, may enter into the weight to be given to their testimony. We do not think the instruction before us is open to that objection. The court was speaking about questions “ to be determined by the testimony of men of great scientific attainments,” and simply declared the truism that when such men testify on such questions, “ other things being equal, the greater number would carry greater weight.” By “other things being equal,” we understand the court to mean all things being equal in respect to each of such witnesses so testifying. This not only included the credibility'' of the respective witnesses, but their opportunities, capacities, attention, memory, and every other fact and circumstance in any way going to make up the weight of their testimony. - It may be difficult to see just bow all such things could be equal as to each of several witnesses; but what was said about giving the greater weight to the greater number is predicated wholly upon such equality in all things, and whether it did or did not exist, was, after all, left to the jury.

We find no material error in the record.

By the Court.— The judgment of the circuit court is affirmed.