Gentry v. Gulf & S. I. R.

Cook, J,, delivered the opinion of the court. This action was begun in the circuit court by appellant, seeking to recover damages for injuries inflicted on him by the negligence of the appellee railroad company. At the first trial of the case appellant was awarded judgment for one thousand five hundred dollars. A motion for a new trial, among other things, set up newly discovered evidence. Without here considering any other ground for a new trial, we think the trial court properly set aside the verdict of the jury and [72] granted defendant a new trial, because tie newly discovered evidence was very pertinent, and may have controlled the verdict in the second trial. The action of the court in granting a new trial being proper, it follows that the motion of appellant to reinstate the former verdict will be overruled. We will now consider the second trial, which resulted in a verdict for defendant. Upon application of defendant the court appointed two physicians to examine plaintiff. Plaintiff was compelled to submit to a physical examination by the court’s physicians. When these physicians were on the stand, testifying for defendant and against plaintiff, it was made known to the jury that they were chosen representatives of the judge of the court. This was done over the objection of plaintiff. It is quite clear to our minds that the quality of the testimony given by these experts was thus much magnified and unduly impressed on the minds of the jury. And this is one of the reasons why courts are denied the power to appoint expert witnesses and compel persons to submit their bodies to their inspection. We cannot admit that physicians, or other experts, appointed by a court at the request of a party to a lawsuit, are more reliable and more disinterested than are others of like attainments and professional standing, simply because the others have given expert testimony at the request of a party to the suit. There is nothing in the education and training of a judge.that peculiarly qualifies him to discriminate in the selection of medical experts, and yet there is little room to doubt that the ordinary juror would give undue weight to the judge’s nominee. In a recent case this court has held that the trial judge is without power to appoint physicians and require parties to a suit to submit their bodies to the inspection of the phinicians designated by the court. Y. & M. V. R. R. Co. v. Robinson, 65 So. 241. It was error'for the court to assume this power in this case. [73] Several of the instructions given at defendant’s request should not have been given. As a sample, we quote the fifth instruction, viz.: “The court instructs the jury, for the defendant, that if they are in doubt as to whether plaintiff was injured or not in the derailment of the train, and this doubt cannot be removed by a clear preponderance of the evidence in the case, the verdict of the jury should be, ‘We, the jury, find for the defendant.’ ” This instruction imposes on a plaintiff a greater burden than the law imposes on the state in a criminal trial. In a criminal trial the state must prove its case beyond all reasonable doubt. By this instruction the plaintiff must remove all doubt from the minds of the jury — and that is not all; the plaintiff must remove all doubt —“by a clear preponderance of the evidence.” The plaintiff must establish his right to recover by a preponderance of the evidence. Whenever the jury is satisfied that the plaintiff has proven his case, the plaintiff is entitled. to recover. The law imposes on the plaintiff no burden to remove all doubts from the minds of the jury. This instruction is misleading, and calculated to do much harm. Lawsuits must be tried under reasonable rules and regulations. It is reasonable to require the party Avho asks relief to satisfy the jury that he is entitled to it. It is unreasonable to require the plaintiff to remoAre all doubts which may find lodgment in the brain of some skeptical juror. This instruction, and others in this record, cast on the plaintiff this burden. We refuse to reinstate the former verdict; but the judgment of the court in the last trial is reversed, and the cause remanded. Reversed and remanded.