Fitzgerald v. La Porte

Riddick, J., (after stating the facts.) This case is now before us for the second time. A fuller statement of the facts can be found by reference to the first decision. Fitzgerald v. La Porte, 64 Ark. 34. The main contention of appellants in this appeal is that the presiding judge erred in refusing to instruct the jury that the examination of the work and view of the premises by them was not evidence in the case, and that they should not base their verdict in any degree upon such examination. There is considerable conflict in the decisions of the different courts on this point. But we are of the opinion that the view of the premises by the jury is a species of evidence, and must necessarily operate to some extent upon the minds of the jury. The verdict must be supported by other evidence than the view, and a verdict depending upon a view alone could not be upheld, but we do not think the court erred in refusing to tell the jury that they must not base their verdict in any degree upon such an examination. If the jury were not allowed tobase their verdict in any degree upon the facts ascertained by the view, there would be little advantage in allowing a view to be made. If that was the rule, a view would be almost certain to prejudice one side or the other; for the jury, after having seen the work itself, could hardly eradicate the impression thereby made upon their minds, so as to render their verdict without reference thereto. The statute permits the view by the jury to enable them better to understand the testimony, and for the reason that it may tend to enlighten their minds with reference to the issues of fact involved in the case. We think it was evidence, to be considered by the jury in connection with other facts in the case. Benton v. State, 30 Ark. 349; Tully v. Fitchburg R. Co., 134 Mass. 503; Smith v. Morse, 148 Mass. 407; People v. Thorne, 42 Lawyers’ Rep. Ann. 398, note. On this, as well as on other points discussed, we think the charge of the presiding judge was correct. Certain instructions asked by the defendants were refused, but the points involved were substantially covered by other instructions given to the jury. It is not our province to pass upon the weight of evidence. The evidence was conflicting, and on the whole case we are of the opinion that the judgment should be afflrmed. It is so ordered. Battle, J., absent.