147 Wis. 259 | Wis. | 1911
Appellant insists that the court erred in giving the following instruction to the jury:
“And you should consider and decide whether the plaintiff ever raised and lowered the saws in question by means of the little wheel under the lath machine table, and if you find that he did so before his injury then you will conclude that he must have seen the saws and known that they were not covered, and in that event you should take that into consideration.”
The fault found with the instruction is that the court assumed that it was an established and undisputed fact in the case that the plaintiff must have seen the saws of the lath machine and have known that they were not guarded, if he raised these saws by means of the wheel under the table of the machine, whereas the jury would be warranted in reaching a contrary conclusion on the evidence.
Some significance should be attached to the fact that plaintiff’s counsel did not in any way call the attention of the court to the alleged misapprehension of the facts, as we think is customary though perhaps not obligatory. Trial courts are uniformly careful not to invade the province of the jury in determining questions of fact, and if the court’s attention had been called to the alleged error it would undoubtedly have been corrected, if error it was.
The court and the jury viewed the premises and the machines in question. The knowledge which jurors acquired from such view they had the right to use in determining the credibility of the evidence offered. Washburn v. M. & L. W. R. Co. 59 Wis. 364, 368, 18 N. W. 328; Neilson v. C., M. & N. W. R. Co. 58 Wis. 516, 523, 17 N. W. 310; Johnson v. Boorman, 63 Wis. 268, 22 N. W. 514; American States S. Co.
Sec. 3072™, Stats. (Laws of 1909, ch. 192), provides:
“No judgment shall be reversed ... on the ground of misdirection of the jury, . . . unless in the opinion of the court to which the application is made, after an examination ■of the entire action, ... it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment.”
After examining the record this court is far from being satisfied that the trial court committed any error. The evidence offered, as far as there is any, strongly tends to support the conclusion of the trial court, and there is no evidence to the contrary. There is, of course, the possibility that the trial court was wrong, but this falls far short of an affirmative showing of prejudicial error, or in fact of any error. Under such circumstances the judgment should not be reversed. Wiese v. Biley, 146 Wis. 640, 132 N. W. 604.
After the jury had been deliberating for some time they were called into the court room and the following colloquy took place:
“A Juror: A question we want to know was this: I asked ■you the other day if in deciding this question jurors were supposed to take into consideration the things in regard to this: — in case they positively know this from experience. Eor instance, if one has, to use a hypothetical case, if he is an expert, is the juror supposed to use the information that he’knows in regard to that in weighing this evidence and convincing other jurors as to the facts of the case ?
*264 “The Court: I understand your question, I think. It is usual to instruct a jury in some cases that they are expected to use all of the knowledge, skill, and judgment that they possess and bring that to bear upon questions involved. A juror who has expert knowledge, that is personal, not hearsay, is entitled to bring that to hear in assisting him and in assisting the other jurors in arriving at a right verdict. In fact it is impossible to separate a juror from his personal knowledge any way and he is expected to use that. That is part of his mental equipment in discharging his duty.
“The Juror: In this case it has developed there are several that understand the construction of these machines. We can’t very well separate from—
“The Court: You are not required to separate that knowledge from anything else. You are entitled to use it.”
It is argued that the court committed prejudicial error in that the jury were advised that they might return a verdict upon their knowledge or supposed knowledge not derived from the evidence in the case. The language used by the court was not happy, in that there is a possibility that it might have misled the jury into the belief that they were at liberty to treat their knowledge as evidence and decide the case upon such knowledge rather than upon the testimony, and even in opposition thereto. This they might not do. Washburn v. M. & L. W. R. Co. 59 Wis. 364, 310, 18 N. W. 328; Johnson v. Boorman, 63 Wis. 268, 22 N. W. 514; Sherman v. Menominee River L. Co. 77 Wis. 14, 22, 45 N. W. 1079. The court told the jury at the beginning of its charge:
“It is your duty to answer these questions according to the fact in each instance as you shall find the fact to be from the evidence given here in court. ... In deciding these questions you should confine your consideration to the evidence given here in court and the proceedings had here in your presence.”
As to each of the questions propounded to the jury, they were told in substance to answer them according to the preponderance of the evidence. The charge repeatedly in
In view of the repeated statements of tbe court above referred to, we tbinlc tbe jury would construe tbe somewhat ’ambiguous language of tbe court as no more than an affirmative answer to tbe question asked and as informing them tbat jthey might use tbe knowledge which they bad gained from observation and experience in determining tbe credibility of tbe evidence-j What tbe juror said in effect was tbat be and some of bis fellow jurors bad practical knowledge of tbe construction of lath machines, not common to all tbe panel. Tbe language used by tbe court was certainly no more calculated to mislead than tbe charge which was held not to be erroneous in Neanow v. Uttech, 46 Wis. 581, 586, 1 N. W. 221. There tbe court instructed as follows:
“You are to bring to bear upon this question [tbe exercise of ordinary care], your own knowledge and your own judgment. It is for you to examine all tbe testimony, all tbe surroundings, all the circumstances, and then apply your own judgment, your own good sense, and answer tbe question either in the negative or affirmative.”
There was no assertion tbat tbe jurors bad any knowledge of tbe specific facts in tbe case on trial, and nothing to indicate tbat tbe juror wbo asked tbe question or any of bis associates was a competent witness rather than a qualified juror. It is well settled tbat jurors cannot supply a material item of evidence by assuming knowledge on tbe subject. It is just as well settled tbat it is highly improper for a juror to assert in tbe jury room knowledge on some specific point involved in tbe trial which would make him a material witness. If use is to be made of such knowledge it should be given under
So we think the real question here is, May one or more jurors use the knowledge which they have gained from observation and experience not common to all the jurors in determining the credibility of the evidence offered, and give the benefit of such knowledge to their fellow jurors who may lack such information ? Lawyers know that jurors always have and always will do just what we think the court in effect said might be done here, and it is difficult to see how they could well do otherwise, [if a juror knows that a plaintiff in an action is a man of character and standing, whose word is as good as his bond in the community in which he lives, and that the defendant is shifty, tricky, untruthful, and unreliable, and a question of veracity arises between the two, it is well nigh impossible for him to remain oblivious to the facts which he knows when he is determining the question of credibility?! So, too, when one witness testifies to something which the observation and experience of the juror tells him is false, while another witness has testified in reference to the same matter to what he knows to be the truth, it is difficult to imagine how a juror could disregard what he knows in passing upon the credibility of the witnesses. If he could do it, it is not desirable that he should, because that knowledge is part of the equipment which he brings with him to the jury box. A person is not supposed to forget everything he ever knew and become an automaton when he is sworn as a juror. He may make use of the intelligence with which he is endowed and the knowledge he has gained for the legitimate purpose of passing upon the credibility of the evidence.
It is said in the discussion of the first error assigned that jurors may use the knowledge which they acquire from a view of the locus in quo, in passing upon the credibility of evidence, and the proposition is well settled by the cases cited and referred to. Knowledge gained in this way is no more
There is authority for the proposition that the knowledge which a juror may use in enabling him to pass upon the credibility of testimony must be knowledge that is common to all the jurors, and an obiter expression in Northern S. Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066, might well be understood as so holding. This would seem to be a narrow rule if not an unwise one. The knowledge which men acquire in the rugged school of experience is a valuable asset to them when they are called upon to perform jury duty. If there is a conflict in evidence pertaining to some fact upon which a farmer has acquired knowledge by his experience which is not common to the general run of mankind, but which enables him to decide with accuracy who is telling the truth, the half dozen farmers who may be on a jury should be permitted to use that knowledge and give their confreres the benefit of it.
“While it is undoubtedly true tbat a jury is not at liberty to consider any fact pertinent to tbe issue which they are called upon to try, unless it is found in tbe testimony adduced, even though such fact may be known to some one, or all, of tbe jury; yet this rule does not, and cannot, from tbe very nature of things, forbid a juror, in weighing tbe credibility of tbe testimony, from taking into consideration bis own knowledge of the character of tbe witness delivering such testimony. Tbe credibility of testimony is a question exclusively for tbe jury, and we do not see bow it is possible for a juror in considering tbat question to exclude from bis mind bis own knowledge of tbe character of tbe witnesses. Tbe question is, what impression does tbe testimony make upon tbe minds of the jurors, and tbat impression must necessarily be affected by their own knowledge of tbe character of the witnesses from whom such testimony proceeds. We suppose tbat it rarely, if ever, happens tbat tbe character of at least some of tbe witnesses is not known to some or all of tbe jurors, and we do not see bow any rule of law can prevent such knowledge from having its weight. If a fact is testified to by a witness whom tbe jurors know to be of such an infamous character as to render him totally unworthy of belief, it is difficult to understand bow any rule of law can compel a jury to believe tbat which they cannot believe. Tbe constitution of tbe human mind renders such a rule as tbat contended for utterly impracticable.”
To tbe same effect is McKain v. Love, 2 Hill (S. C.) 506.
Tbe form of instruction tbat appears to be most generally approved is, tbat tbe jury in examining tbe evidence and in determining tbe weight to be given to it may use such general practical knowledge as they may have upon tbe subject. Willis v. Lance, 28 Oreg. 371, 43 Pac. 487; Douglass v. Trask, 77 Me. 35; Johnson v. Hillstrom, 37 Minn. 122, 33
This rule does not say, and we think it does not mean, that the knowledge must be common to all the jurors. We conclude that the instruction, rightly understood, was not erroneous. Moreover, we do not think that the instruction could prejudice the jury in answering the questions which were answered adversely to the contention of the plaintiff.
By the Court. — Judgment affirmed.