Fiedler v. Chicago, Indiana & Southern Railroad

Mr. Presiding Justice Dibell delivered the opinion of the court. 2. Witnesses, § 197*—when paper used by witness to refresh memory may not be used by adverse counsel. Where a paper from which a witness has refreshed his recollection as to the facts to which he testifies contains expressions of opinion, and such witness after examination of the paper testifies to all the matters of fact therein contained, so that the witness could not be contradicted by the admission of the paper, it is incompetent as evidence. 3. Evidence, § 365*—when opinion evidence improper. Opinion evidence is properly excluded where there is no occasion for expert testimony, and where the jury are as well qualified as the witness to decide the question as to which the opinion is sought. 4. Instructions, § 41*—when instruction not rendered improper by insertion of words limiting province of jury. The insertion of the words “if proven” in an instruction requested by a party, which instruction commences “if the jury believe from the evidence,” is not objectionable as shifting the burden of proof, the words inserted being of the same meaning as “if the jury believe from the evidence,” and the words so inserted being merely an unnecessary repetition of what was already expressed. 5. Appeal and error, § 1241*—when party may not complain of his own instructions. The fact that an instruction given put an improper burden on a party to an action cannot be assigned by such party as error where the instruction complained of was requested by it.