Herndon v. Southern Ry.

• Decision Date: 22 May 1913
• Citation: 78 S.E. 287,162 N.C. 317
• Parties: HERNDON v. SOUTHERN RY.
• Court: North Carolina Supreme Court

78 S.E. 287

162 N.C. 317

HERNDON v. SOUTHERN RY.

Supreme Court of North Carolina

May 22, 1913

Appeal from Superior Court, Mecklenburg County; Justice, Judge.

Action by Sallie R. Herndon against the Southern Railway. Judgment for plaintiff for less than the relief demanded, and she appeals. Affirmed.

An instruction that, in weighing the evidence, the jury should consider the interest of the parties, the conduct of the witnesses, their demeanor, interest, and bias, and means of knowing that to which they testified, and their character and reputation, held proper.

Civil action tried at September term, 1912, Mecklenburg Superior Court, Justice, Judge, upon these issues: (1) Was the feme plaintiff, Sallie R. Herndon, injured by the negligence of defendant, as alleged in the complaint? Answer: Yes. (2) What damages are the plaintiffs entitled to recover of the defendant? Answer: $500. From the judgment rendered plaintiff appealed.

Maxwell & Keerans, of Charlotte, for appellant.

O. F Mason, of Gastonia, and Shannonhouse & Jones, of Charlotte for appellee.

BROWN J.

The only assignment of error is directed to the charge of the court. It must be admitted by any one who reads the charge in this case that it is a full, clear, and accurate statement of the law bearing upon each issue. As each issue is found for plaintiff, it would seem that she has no reason to complain of the judge. If she was not awarded as large damages as she hoped for, it was evidently because the jury did not think she had sustained them. The charge upon the issue of damage was especially liberal to plaintiff, and permitted the jury to take into consideration every possible element of damage permissible in such cases, especially suffering in body and mind and shock to the nervous system. Taking the charge as a whole, we find nothing that either party can justly complain of. Speight v. Railroad, 76 S.E. 686.

His honor, after charging fully, fairly, and correctly on each issue, concluded his charge with those words, to which plaintiff excepts, to wit: ""Weigh all of this evidence, gentlemen, in every way, and in weighing it you have a right to take into consideration the interest that the parties have in the result of your verdict, the conduct of the witnesses upon the stand and their demeanor, the interest that they may have shown, or bias, upon the stand, the means they have of knowing that to which they testify, their character and reputation in weighing this testimony so as to arrive at the truth of what this matter is; take the case, gentlemen." This is but an admonition to the jury and not pointed to any particular witness or party. It applies with equal force to the defendant as to plaintiff and to all witnesses alike. The record shows that the defendant introduced quite a number of witnesses including some in its employ. In no sense can the charge quoted be considered as an expression of opinion upon the facts upon the part of the judge, and it is hard to see how it could be prejudicial to one party more than to the other. His honor's charge is but a caution to the jury, and is supported by authority.

In Hill v. Sprinkle, 76 N.C. 353, the trial judge was requested to instruct the jury "that when there is a conflict of testimony between witnesses of equal respectability, one of whom is a party in interest and the other not, the jury have the right to consider the question of interest in deciding upon the credibility of the witnesses"; and the court said: "His honor did not give the instructions in so many words, but told the jury 'that they had a right to consider all the circumstances attending the examination of the witnesses on the trial and to weigh their testimony accordingly.' The plaintiff had a right to the instructions asked, and it may be that the court intended those given as a substantial compliance with the prayer for instructions. But we do not think that they were or that the jury so understood them. It is questionable whether they or others understood that the interest of the defendant in the suit as affecting his credibility was a circumstance attending the examination of a witness as distinguished from deportment, intelligence, means of knowledge, and the like, which are more frequently understood as circumstances attending the examination of witnesses. At all events, the charge is not such a clear and distinct enunciation of an important principle of evidence as could leave no reasonable doubt of its meaning in the minds of the jury. The prayer was distinct, and the response should have been equally so. For generations past and up to within the last few years, interest in the event of the action, however small, excluded a party altogether as a witness, and that upon the ground, not that he may not sometimes speak the truth, but because it would not ordinarily be safe to rely on his testimony. This rule is still applauded by great judges as a rule founded in good sense and sound policy. *** The parties to the action are now competent witnesses, but the reasons which once excluded them still exist, to go only to their credibility."

It is said in 30 A. & E. Ency. 1094: "While the testimony of a party in interest, as that of any other witness, must be submitted to the jury, the interest *** is a matter to be considered by the jury in weighing the testimony and determining what force it shall have."

"It is very generally held proper to instruct the jury that they may take into consideration the interest of a party or other witness in determining the credibility of his testimony, and according to the weight of authority the court may instruct the jury that they should consider such interest. Instructions of this character are not objectionable as charging the jury with respect to matters of evidence, and the refusal of such instruction is error, and the error is not cured by a general instruction that the jury are the judges of the credibility of the witnesses and the weight to be given to the testimony of each, nor by an instruction that the jury are to use their common sense and experience in regard to the credibility of witnesses." 38 Cyc. 1729.

"An instruction to the jury that they may consider the relations of the parties and witnesses, their interest, temper, bias, demeanor, intelligence, and credibility in testifying, is not a violation of the constitutional provision prohibiting judges from charging juries with respect to matters of fact, or commenting thereon." Klepsch v. Donald, 4 Wash. 436, 30 P. 991, 31 Am. St. Rep. 936; Salazar v. Taylor, 18 Colo. 538, 33 P. 369; 46 Cent. Dig. tit. "Trial," 418, 193.

The instruction was not only very general in its character, but was not even imperative. It did not require the jury to scrutinize the testimony or even to consider the interest of parties, but stated simply that the jury had the right so to do.

In this respect the case is clearly distinguishable from the cases relied upon by the learned counsel for plaintiff. In those cases, the court directed the jury to "scrutinize all the evidence with great caution, considering their interest in the result of the verdict," or that it should "be regarded with suspicion and carefully scrutinized," or "to scrutinize the testimony of the defendants and receive it with grains of allowance on account of their interest," or that "it was their duty to scrutinize the testimony," or to ""scrutinize the testimony and receive it with grains of allowance," or some similar direction whereas, in the case at bar, the trial judge simply informed the jury that they had "a right to take into consideration the interest that the parties have in the result of your verdict, the conduct of the witnesses upon the stand, and their demeanor, the interest that they may have shown or bias upon the stand, the means they have of knowing that to which they testified, their character and reputation, in weighing this testimony, so as to arrive at the truth of what the matter is." This charge did not single out the plaintiff as an object of suspicion, as in State v. Holloway, 117 N.C. 732, 23 S.E. 168, in which the court instructed the jury "they had a right to scrutinize closely the testimony of the defendants, and receive it with grains of allowance, on account of their interest in the event of the action." To same effect is State v. Graham, 133 N.C. 652, 45 S.E. 514, and State v. McDowell, 129 N.C. 532, 39 S.E. 840; State v. Vann, 77 S.E. 298. In Speight v. Railway, 76 S.E. 686, the court singled out the plaintiff and charged, "It is your duty to carefully consider the testimony of the plaintiff and ascertain as best you can what influence the interest she has in the suit would have upon *** her testimony," etc. It is useless to comment further upon the cases cited by plainti...