151 Iowa 353 | Iowa | 1911
On September 12, 1908, plaintiff purchased three hundred and seven sheep from Hill & Son, a firm of dealers or commission men at South Omaha, Neb.,
The question before us on this branch of the case is therefore whether the defense upon which appellant relies has been so clearly and satisfactorily established as to leave no room for a different conclusion upon the part of intelligent, fair-minded jurors. Such is not our conclusion from the record. It is true that plaintiff’s claim that the sheep were in reasonably good condition when delivered is vigorously contested by the defendant, and it offers a strong array of evidence tending to show that the animals were the culled remnant of a larger flock from which the more valuable portion had been before selected and sold; that from four to six died in the yard before the car was loaded; that on arrival at Valley Junction more were found dead; that a disease of some kind seemed to develop among them; that others were found dead on arrival at Sibley, and still others died between Sibley and Elkton. It would appear from the record that this showing did convince the jury that the loss of a portion of the sheep was chargeable to causes for which a carrier is not held responsible, for the testimony is without substantial dispute that had the sheep been delivered at Elkton in good order, they would have been worth $3.50 per head. According to his showing, plaintiff lost two hundred and twenty-two sheep, and defendant’s showing makes the number two hundred and sixteen, but the verdict returned of
As to the circumstances attending the transportation and care of. the shipment, it is shown that the train \in which the sheep were hauled to Valley Junction, where they were to be unloaded, fed, and watered, arrived there about 7 o’clock p. m. of September 14, but they were permitted to remain in the car all night. The sheep were all in one double-decked car, and the weather quite warm. When unloaded in the morning, twenty ■ were found dead, and others showed signs of weakness. They remained in the yard until evening, when they were reloaded, and at 4.TO o’clock a. m. next day. were started on the journey to Sibley, the next feeding point, where they arrived at 5:30 o’clock p. m. While in the yard at Valley Junction, several witnesses say the sheep, or many of them, appeared to be suffering from dysentery or other disease of the bowels, and several died there. At Sibley many others were found dead. The remnant was unloaded, fed, and transferred to another car. The trip thence to Elkton was accomplished in about four hours. It is the claim of plaintiff that the defendant was negligent in keeping the crowded car, without unloading, on its tracks at Valley Junction an unreasonable length of time, and that the jury may well have believed that the disease, if any, of which the sheep died was developed by this treatment, or if the sheep were in any manner affected by the disease when shipped that such treatment operated to aggravate its effect, and the mortality resulting therefrom. We are unable to say that this is not an allowable inference from the facts shown.
The train arrived at Valley Junction at 7 o’clock p. m. on September 14, a time of the year when we will take judicial notice that the darkness of night had scarcely set in. Instead of promptly placing the car in position for unloading, it was not moved to the sheep pens until 1 o’clock in the morning, and it was not until the car was so placed that any attempt was made to unload it, and the alleged difficulty encountered. There was no prejudice to the defendant in rejecting the evidence.
It appears, moreover, that while testimony of this nature by some witnesses was ruled out defendant succeeded in getting it before the jury in evidence given by other witnesses.
Bearing upon the weight to be given expert evidence, the court instructed the jury as follows: “(10%) Testimony has been given by certain witnesses who, in law, are termed experts, and in this connection I would suggest to you that while in cases such as the one being tried, the law receives the evidence of men, expert in certain lines, as to their opinions derived from their knowledge of particular matters, the ultimate weight which is to be given to the testimony of expert witnesses is a question to be determined by the jury, and there is no rule of law which requires you to surrender your own judgment to that of any person testifying as an expert witness, or to give controlling effect to the opinion of scientific witnesses; in other words, the testimony of an expert, like that of any other witness, is to be received by you and given such weight as you think it is properly entitled to; but you are not bound
Upon this feature of the record we are asked to say that, as plaintiff produced no witnesses to take issue with the defendant’s experts, their testimony is to be taken as conclusively establishing the defense, and that there was error in giving the quoted instruction. We admit, for the purposes of this case, that upon issues which turn solely and entirely upon the answer to some scientific or technical question concerning which the ordinary or unskilled person can have no proper or adequate conception, and where the testimony is wholly of an expert character and without dispute, the jury is bound by it, and the court may control the verdict. But such cases are by no means usual or common, and in all ordinary cases the rule laid down in the instruction criticised is sound. Morrow v. Association, 125 Iowa, 630; Arndt v. Hosford, 82 Iowa, 502; Aetna Ins. Co. v. Ward, 140 U. S. 76 (11 Sup. Ct. 720, 35 L. Ed. 371); Railroad Co. v. Whitney, 143 Iowa, 516; Salinger v. Telegraph, 147 Iowa, 484.
The jury does not sit simply to register the opinion of an expert witness, even though it be undisputed. It is its own exclusive function to pass upon the fact put in issue. The testimony of the expert may not be arbitrarily rejected, but, like the evidence of every other witness, it is to be considered by the jurors, who are to accord to it influence, much or little, according as it appeals to their intelligent and impartial minds, in view of all the facts and circumstances developed upon the trial and the common knowledge and experience of mankind. Nor is the instruction subject to criticism as tending to belittle expert evidence. On the contrary, the only effect is to prevent the undue exaltation of such evidence, and to place the expert witness on equal footing with all other witnesses, whose testimony must be subjected to the final test of the judgment of the jury.
There being no reversible error involving the merits of the case, the judgment below (modified as herein directed in the-matter of taxation of costs) must be affirmed at the cost of the appellant. Affirmed.