68 N.J.L. 454 | N.J. | 1902
The opinion'of the court was delivered by
This was an action to determine the value of lands taken by the defendant in condemnation proceedings.
The case was tried before the- Circuit Court and a jury and evidence was introduced by both parties on the question of the value of the lands of the plaintiffs taken by the defendant for the placing of its poles, wires, &c.
The writ of error was sued out by the defendant^ and the only assignments of error which need to be considered are the following:
“3. That the said court at the said trial charged the jury that they had the right to take into consideration their own experience as to' whether such structures (meaning telephone poles, wires, &c.,) were detrimental to the market value of abutting property.
“4. That the said court at the said trial charged the jury that if in the jury’s experience such structures were detrimental to the market value of abutting property, they should make compensation accordingly, but if in their experience they were not detrimental, and the jury were not inclined to adopt the views that had been expressed in court by witnesses to’ the contrary, their award should be proportionately less.
“5. Because the court erred in that part of its charge wherein it left it to each juror to take the unsworn testimony of Ms co-jurors on the subject of their experience of whether such structures were or were not detrimental to the market value of abutting property.”
These three assignments of error are based upon the following extract taken from the charge: “You have heard Mr. De Gray mention the conditions which he thinks will be injurious to his property, not as it now lies as farm land, but injurious to it in what he considers a reasonable prospective use. He says that there is a probable present prospect that this propert}!- will come into the market and be available for building sites, and that when it is so placed in the market the presence of this telephone pole—of these wires—together with the right constantly to maintain it and keep it in repair will be a detriment to the property. On tire other hand it is urged
We think that all three of the assignments of error are well founded. The impression given to the jurors by the charge could not have been other than that they were at liberty to accept or reject, to consider or not, as they chose, the evidence taken in the cause. They were clearly given the right to base a conclusion as to the compensation which they would allow the plaintiffs, not only upon the evidence taken in the cause, but, if not in the whole, at least in part, upon their own experience as to whether the structures to be erected were detrimental to the remaining property of the plaintiff.
The effect of this instruction was to make each juror a witness before his co-juror in the consultation room, and a witness whom the defendant could neither examine nor cross-examine.
How are the parties to know upon what evidence the verdict is founded; whether upon the experience and knowledge
A direction to a jury, in a suit for damages done by fire caused by sparks, that “in determining whether the use of a spark-screen on a smokestack would have prevented the fire, they may act on their own judgment, experience and knowledge,” instead of confining them to the evidence in the cause, was held error. Burrows v. Delta, Transportation Co., 106 Mich. 582.
In an action for breach of warranty of a horse, the issue being whether the injury the horse was suffering from was the result of a sprain, an instruction to the jury that “you may find from the evidence, or such' personal knowledge as you may have in relation to matters of this kind, which in cases of this character you are obviously authorized h> apply to the investigation, that such an injury is the result of a sprain,” was held erroneous. Douglass v. Trash, 77 Me. 35.
In a condemnation case, where the question was the value of the lands taken, an instruction to the jury that, “in ascertaining the value of the land, * * * they may cqnsider, not only the evidence, but their own knowledge as to the value of the land,” was held error. Gibson v. Garreher, 91 Ga. 617.
So, in a case in Minnesota, it was held erroneous for the court to say: “You, gentlemen of the jury, have’examined the premises for the purpose of coming to an opinion. You are to use your own examination and judgment, as well as the judgment of the witnesses, in estimating the damages. Some of you are, perhaps, as well qualified to determine that as some of the witnesses who have been called.” Brakken v. Minneapolis and St. Louis Railway Co., 29 Minn. 41, 43.
A late writer on “Instructions to Juries” says: “Although the rule was otherwise at early common law, it is now well settled that a jury must base their verdict upon the evidence delivered to them in open court, and they may not take into consideration .facts known to them personally, but outside of the evidence produced before them in court. If a party would avail himself of facts known to a juror, he must have him sworn and examined as other witnesses, so that his evidence,
On the general subject here discussed, the following cases are in line with this opinion: Close v. Samm, 27 la. 503, 507; Anderson v. Barnes, Cox 203; Schmidt v. New York Union Mutual Fire Insurance Co., 1 Gray 529, 536.
There is a clear distinction between an instruction which permits jurors to use the knowledge and experience which they possess as intelligent men in weighing evidence or testing its credibility and the like and an instruction which permits them to- apply their personal knowledge and experience to the determination of the issue in the cause. Jenny Electric Co. v. Branham, 145 Ind. 314.
It is impossible to- read the charg-e in this case without concluding that the jurors were justified in believing that they might, in fixing values, use their own experience, and hence, knowledge, in their determination, and that they were not required to be governed solely, if at all, by the evidence adduced at the trial.
For this -error there must be a reversal.