31 Iowa 370 | Iowa | 1871
—At the trial, an instruction was prepared and presented by defendant’s counsel to the court, with other instructions asked by them, to the effect that, under the pleadings in the case, the plaintiff, to entitle him to recover, must prove that at the time of the injury he was in the employment of defendant. This instruction was not read by the court to the jury, and was not intended to be given them, but through oversight of the court was handed to them with other instructions. It was not marked “given” or “refused.” It was taken by the jury, with the instructions in the case, to their room, when they retired to deliberate upon their verdict. Among other instructions given by the court upon his own motion, was one which in substance directed the jury that it is immaterial whether plaintiff was, at the time he was injured, in the employment of the defendant or of other parties.
It is not denied that the instruction handed by mistake to the jury is erroneous and in conflict with the instruction last referred to. It is not made to appear by the record that the jury were not influenced in their determination by the first mentioned instruction, and that no prejudice resulted therefrom to plaintiff, neither, on the other hand, is it shown that prejudice did result therefrom. Under these circumstances will the erroneous instruction operate to defeat the verdict ?
The record contains no proof that the erroneous m
Have we any assurance that the same, effects were not produced in this case by the instruction in question, which was handed to the jury by mistake ? "We can only conclude that no mischief was done by supposing that the jury knew that the instruction was not given to them by the court, and, therefore, disregarded it, or that it was not seen or read by them. ' The first supposition may be probable, the second is hardly possible. But were we to admit both suppositions to be within the range of probability, all we could say is that the verdict is probably a true expression of the minds of the jury under the guidance of correct rules of law — that it is, perchance, correct. This is the most that can be said of it.
But the administration of the law rests upon no such uncertainty. Suppositions based upon the calculation of chances, or upon the possible acts of men that are quite as
As the verdict of the jury in this case rests in so much uncertainty, it cannot be sustained. The judgment of the ■ circuit court is therefore reversed, and the cause remanded.
-Reversed.