Great Western Railroad Co. of 1859 v. Hanks

Caton, C. J. As applied to the testimony in this cause, the second instruction was calculated to mislead the jury, and was erroneous. It was this: “ If the jury believe there is an apparent discrepancy in the evidence, it is their duty to reconcile it if they can, but if they cannot, then they will give positive and affirmative evidence greater weight than negative evidence.” This instruction could only be applied to the testimony of E. D. Walton and L. M. Mason, who do substantially contradict each other — Walton swearing that Mason did purchase the wood for the railroad company, and Mason swearing that he did not purchase the wood. Now here is no negative testimony by either witness. Mason’s testimony that he did not purchase the the wood, is as much positive testimony as it would have been had he sworn that he had purchased the wood. This instruction gave the jury to understand that there was negative testimony in the case, to which they were not to give the weight of positive testimony, and those but superficially acquainted with the meaning of the terms positive and negative testimony, would of course conclude that the testimony of the witness who swore that, a purchase was not made, was the negative testimony. With the first instruction we see no cause of complaint. The judgment is reversed, and the cause remanded. Judgment reversed.