Herndon v. Southern Railway Co.

CLARK, C. J., dissenting. The only assignment of error is directed to the charge of the court. It must be admitted by any one who reads the charge in this case that it is a full, clear, and accurate statement of the law bearing upon each issue. As each issue is found for plaintiff, it would seem that she has no reason to complain of the judge. If she was not awarded as large damages as she hoped for, it was evidently because the jury did not think she had sustained them. The charge upon the issue of damage was especially liberal to plaintiff, and permitted the jury to take into consideration every possible element of damage permissible in such cases, especially suffering in body and mind and shock to the nervous system. Taking the charge as a whole, we find nothing that either party can justly complain of. Speight v.R. R., 161 N.C. 80. *Page 261 His Honor, after charging fully, fairly, and correctly on each issue, concluded his charge with these words, to which plaintiff excepts, to wit: "Weigh all of this evidence, gentlemen, in every way, and in weighing it you have a right to take into consideration the interest that the parties have in the result of your verdict, the conduct of the witnesses upon the stand and their demeanor, the interest that they may have shown, or bias, upon the stand, the means they have of knowing that to which they testify, their character and reputation, in weighing this testimony, so as to arrive at the truth of what this matter is. Take the case, gentlemen." This is but an admonition to the jury, and not pointed to any particular witness or party. It applies with equal force to the defendant as to plaintiff, and to all witnesses alike. the record shows that the defendant introduced quite a number of witnesses, including (319) some in its employ. In no sense can the charge quoted be considered as an expression of opinion upon the facts upon the part of the judge, and it is hard to see how it could be prejudicial to one party more than to the other. His Honor's charge is but a caution to the jury, and is supported by authority. In Hill v. Sprinkle, 76 N.C. 353, the trial judge was requested to instruct the jury "that when there is a conflict of testimony between witnesses of equal respectability, one of whom is a party in interest and the other not, the jury have the right to consider the question of interest in deciding upon the credibility of the witnesses"; and the Court said: "His Honor did not give the instructions in so many words, but told the jury `that they had a right to consider all the circumstances attending the examination of the witnesses on the trial, and to weigh their testimony accordingly.' "The plaintiff had a right to the instructions asked for, and it may be that the court intended those given as a substantial compliance with the prayer for instruction; but we do not think that they were, or that the jury so considered them. It is a question as to whether they or others understood that the interest of the defendant in a suit as affecting his credibility was a circumstance attending the examination of a witness as distinguished from deportment, intelligence, means of knowledge, and the like, which are more frequently understood as circumstances attending the examination of witnesses. "At all events, the charge is not such a clear and distinct enunciation of an important principle or fact as could leave any reasonable doubt of its meaning in the minds of the jury. The prayer was distinct, and the response should have been equally so. *Page 262 "For generations past and up to within the last few years interest in the event of an action, however small, excluded a party altogether as a witness, and that upon the ground, not that he may not (320) sometimes speak the truth, but because it would not ordinarily be safe to rely on his testimony. This rule is still applauded by great judges as a rule founded on good sense and sound policy. The parties to the action are now competent witnesses, but the reasons which once excluded them still exist, to go only to their credibility." It is said in 30 A. E., Enc., 1094: "While the testimony of a party in interest, as that of any other witness, must be submitted to the jury, the interest . . . is a matter to be considered by the jury in weighing the testimony and determining what force it shall have." "It is very generally held proper to instruct the jury that they may take into consideration the interest of a party or other witness in determining the credibility of his testimony, and according to the weight of authority the court may instruct the jury that they should consider such interest. Instructions of this character are not objectionable as charging the jury with respect to matters of evidence, and the refusal of such instruction is error, and the error is not cured by a general instruction that the jury are the judges of the credibility of the witnesses and the weight to be given to the testimony of each, nor by an instruction that the jury are to use their common sense and experience in regard to the credibility of witnesses." 38 Cyc., 1729. "An instruction to the jury that they may consider the relations of the parties and witnesses, their interest, temper, bias, demeanor, intelligence, and credibility in testifying, is not a violation of the constitutional provision prohibiting judges from charging juries with respect to matters of fact, or commenting thereon." Klepsch v. Donald, 31 Am. St., 936; Saalzar v. Taylor, 9 Utah 123; 46 Cent. Dig., title "Trial," 418, 193. The instruction was not only very general in its character, but was not even imperative. It did not require the jury to scrutinize the testimony or even to consider the interest of parties, but stated simply that the jury had the right so to do. In this respect the case is clearly distinguishable from the cases relied upon by the learned counsel for plaintiff. (321) In those cases the court directed the jury to "scrutinize all the evidence with great caution, considering their interest in the result of the verdict," or that it should "be regarded with suspicion and carefully scrutinized," or to "scrutinize the testimony of the defendants and receive it with grains of allowance on account of their *Page 263 interest," or that "it was their duty to scrutinize the testimony," or to "scrutinize the testimony and receive it with grains of allowance," or some similar direction; whereas, in the case at bar, the trial judge simply informed the jury that they had "a right to take into consideration the interest that the parties have in the result of your verdict, the conduct of the witnesses upon the stand, and their demeanor, the interest that they may have shown or bias upon the stand, the means they have of knowing that to which they testified, their character and reputation, in weighing this testimony, so as to arrive at the truth of what the matter is." This charge did not single out the plaintiff as an object of suspicion, as in S. v. Holloway, 117 N.C. 732, in which the court instructed the jury "they had a right to scrutinize closely the testimony of the defendants and receive it with grains of allowance on account of their interest in the event of the action." To same effect is S. v. Graham, 133 N.C. 652, and S. v. McDowell,129 N.C. 532; S. v. Vann, post, 534. In Speight v. R. R., 161 N.C. 80, the court singled out the plaintiff, and charged, "It is your duty to carefully consider the testimony of the plaintiff and ascertain the best you can what influence the interest she has in the suit would have upon her testimony," etc. It is useless to comment further upon the cases cited by plaintiff, for in none of them was the charge so general and so applicable to all parties and all witnesses alike as in this case. We fully agree with what Mr. Justice Walker well says inS. v. Ownby, 146 N.C. at page 678, that "the slightest intimation from a judge as to the strength of the evidence or as to the credibility of a witness will always have great weight with the jury, and, therefore, we must be careful to see that neither party is unduly prejudiced by any expression from the bench which is likely to (322) prevent a fair and impartial trial." But we cannot agree with counsel for plaintiff, that the charge quoted is the slightest expression of opinion upon the facts. It is but the statement of a proposition, the truth of which is self-evident, and was applied alike to all parties and their witnesses. No error.