Bodenheimer v. Chicago & Northwestern Railway Co.

Ejeewtu, J. Tlie appellant claims that the judgment should he reversed for error in the charge. We have set out in the statement of facts the portion of the charge excepted to and need not recite it here. The main contention of the respondent is that, regardless of any alleged errors in the charge, the judgment should be affirmed, because the court should have directed a verdict for the defendant at the close of the evidence; therefore the plaintiff was not prejudiced by any subsequent error. This, of course, involves the question whether the evidence was such as to warrant the court in ■directing a verdict for defendant. We cannot agree with counsel for respondent that a verdict should have been directed. There was ample evidence to support a verdict for plaintiff. We have referred to the evidence briefly in the statement of facts and need not repeat it here. We therefore come to the question whether the case was fairly submitted to the jury without prejudicial error. The vital question for determination by the jury was whether the horse was killed north of the cattle-guard. Upon this question there was a sharp conflict in the evidence, and, in view ■of its character, it was of the utmost importance that the issue be fairly presented to the jury. We think the charge was well ■calculated to impress the jury with the idea that they should And that the horse was killed on the highway crossing and not north of the cattle-guard. The great stress placed by the ■court upon the strength of the evidence of defendant’s witness Bhttel and the weakness of the evidence of plaintiff’s witnesses was strikingly set forth in the charge. The court ■told the jury in effect that Bhttel either wilfully swore falsely ■or was telling the truth, and used other language intimating that he was telling the truth, and thus invaded the province of the jury, who were charged with the duty of passing upon the credibility of the evidence. This portion of the charge was prejudicial error on the ground that it was argumentative and invaded the province of the jury. Digman v. State, [628] 48 Wis. 485, 4 N. W. 668; Conway v. Mitchell, 97 Wis. 290, 72 N. W. 752; Schutz v. State, 125 Wis. 452, 104 N. W. 90. By tibe charge tibe jury were not permitted to find that Kittel was mistaken, but were forced to find that he either told the truth or wilfully swore falsely. We think the jury would have been justified in finding that he was mistaken, although he honestly believed he was telling the truth. In view of the situation as set out in the statement of facts, it seems clear that Kittel may have been mistaken as to whether the horse was north or south of the cattle-guard when struck, and whether the conflict of evidence in that regard might not have been accounted for on the ground of innocent mistake was a proper question for the jury. Moore v. Kendall, 2 Pin. 99; Ely v. Tesch, 17 Wis. 202; Roberts v. State, 84 Wis. 361, 54 N. W. 580; Smith v. Lehigh Valley R. Co. 170 N. Y. 394, 63 N. E. 338. The court further, after instructing the jury that the witness Kittel was either telling the truth or wilfully falsifying, told them in effect that there was nothing improbable in his story, nothing that would suggest why it would be more favorable to him to have the horse struck at one place than at the other, and that, there was nothing to impeach or overcome his testimony unless what plaintiff’s witness saw were actually tracks made by this horse, and that they must endeavor to reconcile other testimony in the case with Mr. Kittel’s. This instruction was clearly erroneous and prejudicial, because it excluded from the jury the right to consider Kittel’s employment by the defendant as a circumstance to be considered in weighing his testimony, as well as the appearance of the witness, his demeanor, and the probability or improbability of his story, and from weighing his testimony in the light of well-recognized tests permissible for that purpose. Other portions of the charge respecting the credibility of the evidence of the witness Miss Cormier and the rule respecting positive and negative testimony, referring to the testi [629] mony of Miss Cormie-r and Mr. Kittel, were erroneous and calculated to prejudice the jury, because it was not correct under the circumstances of the case to tell the jury that Miss Cormier’s testimony was not entitled to the same weight as that of Mr. Kittel because negative in form though positive in fact, since the jury might well be of the opinion, independent of the character of the evidence as to- being positive or negative, that the witnesses were not equally credible, and whether they were or not was clearly for the jury. Anderson v. Horlick's M. M. Co. 137 Wis. 569, 575, 119 N. W. 342; Van Salvellergh v. Green Bay T. Co. 132 Wis. 166, 111 N. W. 1120; Jones, Ev. (2d ed.) § 898 (901); Í7 Cyc. 801. We see no escape from the conclusion that the jury must have been prejudiced by the errors committed in the charge; therefore the judgment must be reversed. By the Gouri. — The judgment of the court below is reversed, and the cause remanded for a new trial.