Arkansas Cent. R. Co. v. Craig

• Decision Date: 01 July 1905
• Citation: 88 S.W. 878
• Parties: ARKANSAS CENT. R. CO. v. CRAIG.
• Court: Arkansas Supreme Court

88 S.W. 878

ARKANSAS CENT. R. CO. v. CRAIG.

Supreme Court of Arkansas.

July 1, 1905.

Appeal from Circuit Court, Logan County, Northern District; Jeptha H. Evans, Judge.

Action by John Craig against the Arkansas Central Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Oscar L. Miles and Lovick P. Miles, for appellant. Robt. J. White, for appellee.

RIDDICK, J.

This is an appeal from a judgment against a railroad company in favor of the plaintiff for damages for killing his horse. We do not find any error in the admission of evidence or in the instructions, and are of the opinion that the evidence is sufficient to support the judgment.

Counsel for appellant contend with much force that the judgment should be reversed because the presiding judge during the trial propounded questions to the witnesses for plaintiff and defendant. The contention is not that these questions were improper, had they been propounded by counsel for plaintiff, but the contention is made that by propounding a number of questions the judge thereby assumed the role of attorney, and in that way indicated to the jury his opinion of the evidence, and prejudiced the rights of the defendant. It is true that a judge, under our law, should neither directly nor indirectly indicate to the jury his opinion of the facts in the case when the same are in dispute, and when the jury are to determine what the facts are. Our Constitution forbids this, and such conduct on the part of a trial judge would be ground for reversal; but we cannot concur in the contention that it is impossible for a judge to propound questions, when counsel objects, without indicating his opinion of the facts to the jury. In a recent and very able work on the Law of Evidence, the author says: "One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge's power and duty to put to the witnesses such additional questions as seem to him desirable, to elicit the truth more fully. This just exercise of his function was never doubted at common law. The judge could even call a new witness of his own motion, and could seek evidence to inform himself judicially. Much more could he ask additional questions of a witness already called, but imperfectly examined. Fortunately," he says, "the tradition of the common law has never been lost. The right of the judge to interrogate as he thinks best has always been preserved in theory. It has, however, been necessary more frequently to maintain and vindicate it, and to resist incroachment upon it." 1 Wigmore on Evidence, § 784. "A circuit judge presiding at a trial," said the Supreme Court of Indiana, "is not a mere moderator between contending parties. He is a sworn...