Sickle v. Wolf

Winslow, J. In this case there was a sharp conflict between the testimony of the plaintiff and that of the defendant as to the terms of the contract of service. Outside of the testimony of these two witnesses there was no testimony save that of the plaintiff’s bookkeeper, who testified to some implied admissions of the defendant.. When the circuit judge said to the jury in substance that when two witnesses directly contradict each other the evidence is balanced unless there is some other witness or circumstance in evidence corroborating one side or the other, he was plainly in error. Mariner v. Pettibone, ,14 Wis. 195. This instruction took no account of the manner of the witness, his interest, intelligence, knowledge of facts, apparent bias or prejudice, or the reasonableness or probability of his story, all of which facts are entitled to be considered in judging where the truth lies when two witnesses directly contradict each other. This instruction in this case was certainly well calculated to mislead the jury, because there was no witness who was present when the contract of service was made, except the parties themselves, and they directly contradict each other. This was without doubt the view of the circuit judge when he granted a new trial, and he certainly was in a better position than we can hope to be to determine the question. It is argued, however, that the error was corrected by subsequent portions of the charge, which gave the right rule to be used in judging of the credibility of witnesses. Were the -case here on appeal from judgment upon the verdict, we 399 might not, perhaps, disturb the judgment. We should examine the whole charge, and if we could say that the error ivas corrected and that the jury could not have been misled we should probably affirm the j udgment. Adams v. McKay, 63 Wis. 404; Annas v. M. & N. S. Co. 67 Wis. 46. But the trial judge, in re-viewing the case, has deliberately held in effect that the erroneous instruction was in his judgment prejudicial to the plaintiff, and we cannot say from the record before us that he was wrong. If it was prejudicial the plaintiff should have a new trial. By the Court.— Order affirmed.