Bissett v. Bryant Lumber Co.

*164 Alijot, J., after stating tbe case: In our opinion, tbe evidence excluded by tbe court was important and material. Tbe evidence of tbe quantity of lumber on tbe cars at tbe mill was not conclusive as to tbe quantity shipped by tbe plaintiff, but it was a fact wbicb, if established according to tbe defendant’s contention, would bave been entitled to consideration by tbe jury. Tbe witness Burnette bad testified tbat be counted and measured tbe lumber on tbe cars, and tbat it aggregated 85,638 feet. There were eight cars of tbe lumber, necessarily of various sizes and dimensions, and tbe plaintiff was contesting tbe correctness of tbe count. When tbe quantity of lumber is considered, it is apparent tbat it was impossible for tbe jurors to remember tbe tallies of lumber as they were read from tbe book, and to make their own calculations from memory, and it has been held by us in Nicholson v. Lumber Co., ante, 59, tbat bis Honor, who presided at tbe trial, did not bave tbe right to permit tbe jury to take tbe book to their room. If, therefore, tbe defendant could not introduce a competent witness ánd let him make tbe calculations and give tbe result to tbe jury, it would bave to rely entirely on tbe evidence of Burnette. Tbe evidence throws light upon tbe question in issue, and tends to corroborate tbe statement of the defendant’s witness as to tbe correctness of bis calculations. A similar question was considered by tbe Supreme Court of Maryland in Lyon v. Cumberland, 17 Md., 459, and tbe Court there says: “It would bave been impossible for tbe jury to carry these figures in their minds if they bad been merely read off by tbe witness to them; and bad tbe jurors undertaken to transcribe them for tbe purpose of adding them up themselves, tbe trial would bave been greatly and needlessly protracted.” Also, in Chicago v. Sheer, 8 Ill. App., 370: “It is further objected that the court erred in allowing a witness to make a computation and testify as to tbe amount of interest due. This objection is without any force. Tbe evidence is admitted merely to aid tbe jury in making a more speedy computation, *165 and thereby to facilitate the dispatch of business. The jury are not bound by the computation thus made by the witness, as it seems they were not in the present instance, but are themselves to ultimately determine what is the true amount of the plaintiff’s damages.” There are other exceptions in the record, which we need not consider, as they are not likely to arise on another trial. There must be a New trial.