91 Wis. 396 | Wis. | 1895
In this case there was a sharp conflict between the testimony of the plaintiff and that of the defendant as to the terms of the contract of service. Outside of the testimony of these two witnesses there was no testimony save that of the plaintiff’s bookkeeper, who testified to some implied admissions of the defendant.. When the circuit judge said to the jury in substance that when two witnesses directly contradict each other the evidence is balanced unless there is some other witness or circumstance in evidence corroborating one side or the other, he was plainly in error. Mariner v. Pettibone, ,14 Wis. 195. This instruction took no account of the manner of the witness, his interest, intelligence, knowledge of facts, apparent bias or prejudice, or the reasonableness or probability of his story, all of which facts are entitled to be considered in judging where the truth lies when two witnesses directly contradict each other. This instruction in this case was certainly well calculated to mislead the jury, because there was no witness who was present when the contract of service was made, except the parties themselves, and they directly contradict each other. This was without doubt the view of the circuit judge when he granted a new trial, and he certainly was in a better position than we can hope to be to determine the question.
It is argued, however, that the error was corrected by subsequent portions of the charge, which gave the right rule to be used in judging of the credibility of witnesses. Were the -case here on appeal from judgment upon the verdict, we
By the Court.— Order affirmed.
