Louisville, New Orleans & Texas Railway Co. v. Whitehead

Instruction. Singling out witness. Weight of evidence. Code 1892, § 732. It is error to instruct that the testimony of experts is to be “received with caution, as the opinions of such witnesses, however honestly entertained, may be erroneous.” Thus to single out witnesses, and unfavorably contrast their testimony with that of others, is in violation of ? 732, code 1892, forbidding instructions on the weight of evidence.

From the circuit court oi' Franklin county. Hon. W. P. Cassedy, Judge. Action for damages by appellee against the appellant for the alleged backing up of the waters of a stream on the lands of plaintiff, by the construction of the road-bed of the defendant. On the trial, the defendant introduced two surveyors, who testified that they had made surveys, and found that the land of plaintiff which was alleged to have been overflowed was, in fact, higher than the road-bed, and, for that reason, it was impossible that the overflow could have been occasioned by the construction of the same. The question at issue was whether or not the overflow was thus caused. Among other things, the following instruction was given : “ The court further instructs the jury for the plaintiff that they are the exclusive judges of the evidence in the case, and, while the opinions of experts are admissible in evidence, such evidence should be received with caution, as the opinions of such witnesses-, hovever honestly entertained, may be erroneous, and if the evidence in the case shows them to be, then they should be disregarded.” 1. Considering the testimony of the surveyors as only the opinions of experts, plaintiff’s first instruction was wrong. It was on the weight of the evidence; and, further, it was objectionable in singling out part of the testimony in the case for special animadversions. 10 Hnn (N. N.), 357; 57 rncl., 461; 63 lb., 524; 94 lb., 147; 32 Kan., 255 ; 33 N. W. Rep. (Mich.), 24; 37 Miss., 471; 41 lb., 79; French v. Sale, 63 lb., 386; Woods v. State, 67 lb., 575; Kearney v. State, 68 lb., 233. 2. It was error to treat the testimony of the two witnesses for defendant as the opinions of experts. They did not testify to opinions, but to scientific measurements. They were expert witnesses, yet, what they testified to was not mere inference, but observations made by them in respect to an apparent physical fact. It was error to confound the two things, and manifestly the instruction tended to discredit the defendant’s case. Filed a brief, which was confined to a discussion of the evidence.