36 P. 572 | Or. | 1894
Opinion by
This is the second appeal in this case. The facts are sufficiently detailed in 22 Or. 202, 29 Pac. 485, and need not be repeated here. On the second trial, in which the evidence was substantially the same as on the first, the court read from the former opinion, as its entire charge to the jury, the three proposed instructions numbered one, two, and three, for the refusal to give which a new trial was ordered, and, although repeatedly requested by plaintiff’s counsel, refused to instruct upon his theory of the case, or as to the law applicable to the facts which his evidence tended to prove. Judging from the reasons given for the refusal to so instruct the jury, and the
The law is well settled that it is the duty of the trial court to instruct the jury upon the whole case, and not single out only those facts which have a tendency to establish one side or the other. It should declare the law applicable to the facts contended for, and submit the case to the jury upon the theory of both parties: Thompson on Trials, §§ 2328, 2329; Swope v. Schafer, 4 S. W. 300; Winchester v. King, 46 Mich. 102, 8 N. W. 722. Now in the case at bar the charge as given is only applicable to the evidence of the defendants, and submits to the jury only their theory of the case, and was therefore calculated to, and no doubt did, mislead the jury by causing
Reversed.