was in some manner directed to them;65 an instruction that if the jury believe that at the point where an animal was killed the view of the railroad was obstructed, that the defendant's agents did not exercise ordinary care, and that the killing of the animal was the direct and proximate result of such obstruction, the plaintiff may recover; an instruction, that if the jury believe from the evidence that an employé of the railroad testified under fear of losing his employment, fear of offending his employer, or desire to please his employer, or avoid censure, they may take such circumstances into consideration in weighing the evidence, there being no evidence of bias or prejudice resulting from employment."7

§ 7911. Instructions as to Facts Necessary to Constitute Negligence. It is generally regarded as an invasion of the province of the jury for the court to express an opinion on the weight of the evidence or what the evidence proves or does not prove as to negligence,"8

61

§ 7910. Instructions on the Weight of the Evidence.-It is a wellsettled principle of law that in trials by jury the weight to be given to the testimony of the witnesses is a question to be decided by the jury exclusively; hence, the court should not instruct the jury as to the probative value of positive and negative testimony.59 If such an instruction is given it should embody the qualification that other things must be equal and the witnesses of equal credibility, and should not be so phrased as to leave the impression on the jury that the evidence of one of the parties is positive, and that of the other negative and on that account entitled to less weight. An instruction to disregard the evidence relating to certain defective conditions unless such defective conditions directly contributed to the injury should not be given, as such evidence is properly for the consideration of the jury if the conditions were an efficient, though they may not have been the direct, cause.62 In a case where there was evidence as to the condition of the plaintiff's mind, and her competency was questioned because of her mental condition, it was held proper to instruct the jury that in determining the weight to be given the plaintiff's testimony they could take into consideration the testimony as to her mental condition, together with her own statements as to the occurrence of the accident, and give her testimony such weight as in their judgment it was entitled to. The following instructions have been held improper as being upon the weight of the evidence:-An instruction that proof that the injury was received as the direct result of an unusual occurrence raises the legal presumption that the accident happened by reason of negligence, in the absence of a showing that it was caused under circumstances which the greatest care could not have prevented; an instruction that positive testimony of witnesses who had an opportunity to know whether the whistle was sounded and the bell rung as an engine approached a crossing should have more weight than the testimony of witnesses who did not hear such signals unless their attention

58 See ante, § 7387, et seq. 59 Louisville &c. R. Co. v. Stommel, 126 Ind. 35; s. c. 25 N. E. Rẹp. 863.

Atlanta &c. St. R. Co. v. Bigham, 105 Ga. 498; s. c. 30 S. E. Rep. 934. See also, Atchison &c. R. Co. v. Freehan, 149 Ill. 202; s. c. 36 N. E. Rep. 1036; Hess v. Williamsport &c. R. Co., 181 Pa. St. 492; s. c. 37 Atl. Rep. 568; 41 W. N. C. (Pa.) 311; Texas &c. R. Co. v. Baldez (Tex. Civ. App.), 43 S. W. Rep. 564 (no off. rep.). An instruction upon positive and negative testimony as to. the ringing of a bell was properly refused, where the witnesses for the

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plaintiff testified that the bell was not rung, with as much positiveness as the witnesses for the defendant testified that it was rung: Denver &c. R. Co. v. Lorentzen, 79 Fed. Rep. 291; s. c. 24 C. C. A. 592; 49 U. S. App. 81.

61 Bisewski v. Booth, 100 Wis. 383; s. c. 76 N. W. Rep. 349.

62 Faulkner v. Mammoth Min. Co., 23 Utah 437; s. c. 66 Pac. Rep. 799. 63 Guthrie v. Shaffer, 7 Okla. 459; s. c. 54 Pac. Rep. 698.

4 Texas &c. R. Co. v. Burnett, 80 Tex. 536; s. c. 16 S. W. Rep. 320.

was in some manner directed to them,65 an instruction that if the jury believe that at the point where an animal was killed the view of the railroad was obstructed, that the defendant's agents did not exercise ordinary care, and that the killing of the animal was the direct and proximate result of such obstruction, the plaintiff may recover; an instruction, that if the jury believe from the evidence that an employé of the railroad testified under fear of losing his employment, fear of offending his employer, or desire to please his employer, or avoid censure, they may take such circumstances into consideration in weighing the evidence, there being no evidence of bias or prejudice resulting from employment."7

§ 7911. Instructions as to Facts Necessary to Constitute Negligence. It is generally regarded as an invasion of the province of the jury for the court to express an opinion on the weight of the evidence or what the evidence proves or does not prove as to negligence,"

or contributory negligence," unless the act is so gross and palpable that the law will treat it as negligence per se." Accordingly, it has been held in an action for the wrongful death of the plaintiff's decedent in another State, that it was error to instruct the jury as to what acts constituted negligence in such State, although the instruction was an extract from a legal decision of the court of last resort of such State." But this rule does not prohibit the court from enumerating the facts hypothetically which the evidence tends to prove, without intimating an opinion as to the truth or falsity of the facts, and declaring the law applicable thereto.72

§ 7912.

Instructions on Circumstantial Evidence. In an action for personal injuries the court may properly instruct the jury that the plaintiff is not required to establish the negligence of the defendant by direct and positive evidence, but that such negligence may be proved by circumstances establishing such negligence by fair and just inferences."

$ 7913. Number and Credibility of Witnesses.-An instruction that if one witness testified that an engine was emitting sparks at a certain time and place, but two other witnesses testified that it was not then and there emitting sparks, and the witnesses are all equally credible, the fact of emission of sparks is not established, is erro

their discretion, was held erroneous as invading the province of the jury: Richmond &c. R. Co. v. Freeman, 97 Ala. 289; s. c. 11 South. Rep. 800. Where smooth ice was allowed to remain on the walk on the defendant's premises used by his employé, without putting sand or ashes upon it, such fact would not warrant an instruction that it constituted negligence, as such fact is a question for the jury: Murray v. Knight, 156 Mass. 518; s. c. 31 N. E. Rep. 646. An instruction should not leave the jury to surmise or guess whether the defendant was guilty of negligence, upon the evidence as a whole, but they should be required to find the specific acts of negligence: Batty v. Niagara Falls &c. Co., 37 App. Div. (N. Y.) 93; s. c. 55 N. Y. Supp. 1088.

6 Louisville &c. R. Co. v. Orr, 121 Ala. 489; s. c. 26 South. Rep. 35; St. Louis &c. R. Co. v. Holmes (Tex. Civ. App.), 49 S. W. Rep. 658 (no off. rep.); Gulf &c. R. Co. v. Wood (Tex. Civ. App.), 30 S. W. Rep. 715 (no off. rep.).

TO Illinois &c. R. Co. v. Slater, 39 Ill. App. 69; s. c. aff'd, 139 III. 190; 49 Am. & Eng. R. Cas. 480; 28 N. E. Rep. 830.

1 Savannah &c. R. Co. v. Evans, 115 Ga. 315; s. c. 41 S. E. Rep. 631.

722 Thompson Trials, § 2281. See also, Ravenscroft v. Missouri Pac. R. Co., 27 Mo. App. 617; Ohio &c. R. Co. v. Kleinsmith, 38 Ill. App. 45; Galveston &c. R. Co. v. Buch, 27 Tex. Civ. App. 283; s. c. 65 S. W. Rep. 681; Atchison v. Goodrich Transp. Co., 69 Wis. 5; s. c. 31 N. W. Rep. 164 (an instruction as to what constitutes negligence properly refused if it ignores material facts in evidence bearing thereon). If a general verdict is to be returned, it is the duty of the court to instruct the jury as to the legal effect of the facts in evidence and within the issue: Woolery v. Louisville &c. R. Co., 107 Ind. 381; s. c. 5 West. Rep. 669.

73 Black v. Rocky Mountain Bell Tel. Co., 26 Utah 451; s. c. 73 Pac. Rep. 514.

neous for failure to hypothesize equal means of knowledge on the part of the witnesses." So, an instruction invades the province of the jury which states that after the jury have fairly and impartially considered and weighed the evidence, it is their duty to determine that the weight of the evidence is on the side which has the more intelligent and better informed and more capable and disinterested witnesses, regardless of the number.75

§ 7914. Instructions on Credibility of Witnesses as Affected by Interest or Relationship.-In the absence of evidence tending to affect the credibility of a witness, an instruction should be refused which states that the jury may consider the fact that a witness is an employé of a party to the suit, on the question of his credibility, as the disqualification of a witness on the ground of interest no longer exists.76 The credibility of witnesses is solely a question for the jury, and instructions that, in weighing the testimony of expert witnesses of the plaintiff, the jury should consider the interest, if any, of such witnesses in the suit, should not be given. An instruction that, in determining how far each witness is entitled to credit, the jury may consider the relationship of the witnesses to the parties to the suit, if any such relationship is shown, is not objectionable as singling out the witnesses of the defendant, where there are others who were witnesses for the plaintiff to whom the instruction might apply.78

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§ 7915. Assumptions of Facts in Instructions. It is error for the court in his charge to assume the existence either of material facts which are in issue and controverted upon the evidence, or material facts which there is no evidence tending to prove.80 Thus, the mere

74 Louisville &c. R. Co. v. Miller, 109 Ala. 500; s. c. 19 South. Rep. 989.

7 Eastman v. West Chicago &c. R. Co., 79 Ill. App. 585; s. c. 4 Chic. L. J. Wkly. 21; 17 Nat. Corp. Rep. 794.

T6 Schmidt v. First Nat. Bank, 10 Colo. App. 267; s. c. 50 Pac. Rep. 733.

"Duvall v. Kenton, 127 Ind. 178; s. c. 26 N. E. Rep. 688.

78 Chicago &c. R. Co. v. Winters, 175 Ill. 293; s. c. 51 N. E. Rep. 901; aff'g s. c. 65 Ill. App. 435.

As to assumption of facts in instructions relating to contributory negligence, see Vol. I, § 469.

80

So 2 Thompson Trials, § 2295. See also, Richmond &c. R. Co. v. Greenwood, 99 Ala. 501; s. c. 14 South. Rep. 495; Lincoln Ice Co. v. John

son, 37 Ill. App. 453; Sugar Creek Coal Min. Co. v. Peterson, 177 Ill. 324; s. c. 52 N. E. Rep. 475; rev'g s. c. 75 Ill. App. 631; Parmenter v. Marion, 113 Iowa 297; s. c. 85 N. W. Rep. 90; American Strawboard Co. v. Smith, 94 Md. 19; s. c. 50 Atl. Rep. 414; Fullerton v. Fordyce, 121 Mo. 1; s. c. 25 S. W. Rep. 587; Stone v. Hunt, 94 Mo. 475; s. c. 13 West. Rep. 698; 7 S. W. Rep. 431; De Loge v. New York &c. R. Co., 92 Hun (N. Y.) 149; s. c. 36 N. Y. Supp. 697; 71 N. Y. St. Rep. 720; Lombard &c. R. Co. v. Christian, 124 Pa. St. 114; s. c. 16 Atl. Rep. 628; 46 Phila. Leg. Int. 210; 19 Pitts. L. J. (N. S.) 404; 23 W. N. C. (Pa.) 273; East Tennessee &c. R. Co. v. Winters, 85 Tenn. 240; s. c. 1 S. W. Rep. 790; Dallas &c. Elec. R. Co. v. Harvey (Tex. Civ.