NORTHERN PAC. R. CO. v. HAYES, 87 F. 129

BUNN, District Judge, after stating the facts as above, delivered the opinion of the court. There are three assignments of error made by the plaintiff in error and insisted upon in the argument:

(1) That the court below erred in overruling the defendant’s request to instruct the jury to find a verdict in its favor upon (lie ground that the undisputed evidence showed that the plaintiff was guilty of negligence which contributed to produce the injury.

(2) That the court erred in permitting the plaintiff, against the defendant’s objection, to state his opinion its to the speed of the train which struck' him at the time of the accident.

(3) That the court erred in charging the jury as follows: “You have a right to reject the evidence or testimony given by one witness, if you are satisiied from his appearance, or from the circumstances, that lie has not testified truly, or to the whole truth.” Exceptions supporting these several assignments of error are duly preserved, and appear in the record. The speed of the train which backed into the yard that night, and which struck the plaintiff, was a material question at issue, and much disputed on the trial. The plaintiff did not see the train at all.

He was walking in the same direction, ahead of it, and was struck in the back, and thrown, he thinks, 20 or 30 feet; and he says lie was never struck by a train before in that way, and had nothing to judge of as to the speed, except that one Wow. Nevertheless he was allowed, against the defendant’s objection, to give his opinion of the speed of the train, which he says was very fast, and, lie would judge, between 15 and 20 miles an hour. We think this was error.

He was simply guessing at the distance he was thrown, and from this, and from the force of the blow on his shoulder, he guessed at the speed of the train. It can hardly be assumed that, the jury would not be influenced in any degree by such testimony, indeed, the very fact that it was held competent, and permitted to be given to the jury, would naturally be taken by them as a warrant that some credit might or should be given to an opinion so poorly founded. It is elementary that the admission of illegal evidence over objection necessitates a reversal. Waldron v. Waldron, 156 U. S. 380, 15 Sup.

Ct. 383, and cases cited. In order that the court may not disturb a judgment for error, it should appear beyond a doubt that the error complained of did not and could not have prejudiced the rights of the party objecting. Railroad Co. v. O’Reilly, 158 U. S. 337, 15 Sup. Ct. 830. The third assignment of error, made upon the charge of the court as to rejecting the evidence of witnesses, is also well made. The instru'ction is toó broad and unqualified, and would give the impression to the jury that they were quité at liberty to reject the testimony of any witness, at their own unrestricted will and pleasure.

Nor is the instruction helped out by any other given on the same subject. It is true, the rule is better stated in another place; but the instruction to which exception was taken is in addition to that, and would be taken independently by the jury. The jury were told that they had the right to reject the evidence or testimony given by a witness if they were satisfied from his appearance, or from the circumstances, that he had not testified truly, or to the whole truth. What appearance or what circumstances would the jury understand that the court referred to?

Could the jury reject a witness’ evidence on account of his dress or color? Should the circumstances be those disclosed on the trial, or would it also include those within the knowledge of the jury, derived from other sources? Would the whole truth, which the witness must testify in order to be believed, include those in regard to which he is not interrogated on the stand, or which by inattention or inadvertence have been omitted? The instruction seems quite too unguarded and unqualified, leaving too much to the arbitrary discretion of the jury.

The jury might well understand from such an instruction that it was left unrestrictedly to them whether to believe or disbelieve any witness. Insurance Co. v. Gray, 80 Ill. 31; Evans v. George, Id. 53. In the latter case the court say: “Tbe proposition that the .jury have the right to disbelieve such witnesses as, in their judgment, under all the circumstances, are worthy of belief, is not the rule.

The jury, although they are judges of the credibility of the witnesses, have no right to disbelieve arbitrarily the testimony, unless where such witnesses have willfully sworn falsely to material facts in the case.” In Little v. Railway Co., 88 Wis. 402, 60 N.

W. 705, the charge under consideration was this: “If you find a witness — conclude a witness — has testified falsely as to any material fact in the case, you are permitted to disregard all of that witness’ testimony, unless it is supported by other evidence.” The court, in commenting upon this instruction, says: “This instruction authorized the jury to disregard all the uncorroborated testimony of any witness, if they reached the conclusion that he had, even through inadvertence or mistake, sworn falsely as to any material fact.

This was error.- As a general rule, the question of the credibility of witnesses is for the jury. If they find that a witness has testified falsely as to a material fact, they are, of course, at liberty to disregard such false testimony. But before they should apply the maxim, ‘False in one thing, false in all things,’ they should find that the witness knowingly or intentionally or corruptly swore falsely as to a material fact,” — citing Mercer v. Wright, 3 Wis. 645; Morely v. Dunbar, 24 Wis. 185; Loucheine v. Strouse, 49 Wis. 624, 6 N. W. 360; Black v. State; 59 Wis. 471, 18 N. W. 457; People v. Evans, 40 N.

Y. 5; Pease v. Smith, 61 N. Y. 483; People v. Chapleau, 121 N. Y. 276, 24 N. E. 469. Tbe conclusions reached by the court in regard to these two assignments of error render the consideration of the first assignment, relating to the refusal of the court to take the case from the jury, unnecessary. The judgment of the court below is reversed, with instructions to grant a new trial. » •