Summary
In Weldy, 8 So. 2d at 250, the plaintiff sued the defendant railroad, alleging that, while the plaintiff rode as a trespasser on the defendant’s freight train, the defendant’s employee assaulted him.
Summary of this case from Gunn v. StateOpinion
No. 34999.
May 25, 1942.
1. EVIDENCE.
The principle of "judicial knowledge" is a rule of "evidence" and not of "substantive law," and it supplies evidence by dispensing with the necessity for adducing proof as to matters of common knowledge.
2. EVIDENCE. Trial.
If a fact is a matter of common knowledge the jury need not be so told by the trial court, and if the fact is not a matter of common knowledge, the jury should not be so told, and such matters may be taken into account either by trial court or by jury, and such matters are matters of evidence and as such are not suitable material for instructions.
3. TRIAL.
Jurors should be left free to integrate common knowledge into their reasoning, and their mental processes should be unaffected by any suggestion from the trial court.
4. TRIAL.
In trespasser's action against railroad for injuries sustained when trespasser fell between moving freight cars after being struck by employee who had ordered trespasser off train, instruction stating that company had instructed brakemen or flagmen to eject trespassers or take them to conductor, and that company was charged with common knowledge that employees sometimes disobey employers' orders, was reversible error, as being on weight of evidence, suggestive and argumentative.
5. TRIAL.
The practice of borrowing language from reasoning of written opinions for use in instructions is discouraged, since such language, isolated from its context, or sought to be translated from mere discussion into substantive law, is apt to become invested with a quality wholly inappropriate for use in instructions.
APPEAL from circuit court of Perry county, HON. F. BURKITT COLLINS, Judge.
C.C. Smith, of Richton, and Welch Cooper, of Laurel, for appellant.
We submit that the instruction is fatally erroneous because it charges as a fact that of which there is no proof; because the inclusion of the common knowledge feature could have but one effect and that was to influence the jury to believe that in the case then at bar the servant had disobeyed the master and thus bring to the attention of the jury an alleged matter of common knowledge with the endorsement of the court; because the inclusion of the quoted part constituted an instruction on the weight of the evidence; because the disobedience of servants is not a matter of common knowledge as those terms are commonly known and understood; because it served to magnify and accentuate a fact which in the state of the record and the state of the issues was prejudicial and unfair to the appellant; because the instruction is argumentative; and because the instruction as written is legally unsound, highly prejudicial and hurtful to appellant.
Currie Currie, of Hattiesburg, for appellee.
Judicial notice is more than a rule of evidence, and courts may use it in disposing of a demurrer even to the extent of noticing facts contrary to the allegations of the pleadings.
People v. Oakland Water Front Co., 118 Cal. 234, 50 P. 305.
Judicial notice takes the place of proof and is of equal force. As a means of establishing facts it is therefore superior to evidence. In its appropriate field it displaces evidence, since, as it stands for proof, it fulfills the object which evidence is designed to fulfill, and makes evidence unnecessary.
Brown v. Piper, 91 U.S. 37, 43; Commonwealth v. Marzynski, 149 Mass. 68.
To take judicial notice is a function, and to apply it to the decision of causes, a right which appertains to every court of justice, from the lowest to the highest, and in the exercise of appellate no less than original jurisdiction.
Arthur v. Norfield Parish Congregational Church Soc., 73 Conn. 718, 49 A. 241; DeLuca v. Board of Park Commissioners of the City of Hartford, 94 Conn. 7.
See, also, Thayer's Preliminary Treatise on Evidence, p. 278.
So, upon sound reason and under settled authority, "judicial notice" and "common knowledge" are parts of the substantive law of the land, and the right of a trial court to instruct the jury what is a matter of "judicial notice" or "common knowledge" cannot be doubted or successfully denied, and the object and legal effect of that part of the instruction complained of was simply to charge the jury, as a matter of law, that the appellee was not required, in order to be entitled to recover, to prove that the appellant actually knew that its brakeman Bryant did forcibly eject the appellee from its freight train, if he did, and that very instruction submitted to the jury the issue of fact whether or not Bryant did so eject him, and that was and is the true law and the court was well within its rights and within the law in granting that instruction, and there is no error in it. It accurately submitted to the jury for its decision every disputable issue of fact involved in the case.
Disobedience of servants to instructions as to the particular manner in which their duties should be discharged is so frequent as to become a matter of common knowledge of which employers must take notice.
Loper v. Y M.V.R.R. Co., 166 Miss. 79, 145 So. 743; So. Bell Tel. Tel. Co. v. Quick, 167 Miss. 438, 149 So. 107.
Argued orally by Ellis B. Cooper, for appellant, and by N.T. Currie, for appellee.
Plaintiff Weldy based his suit upon an alleged assault by a servant of the railroad company. The testimony disclosed that plaintiff while riding as a trespasser upon a freight train of the defendant was ordered off by its flagman or brakeman and while attempting to comply with the order was without provocation struck by such employee. It is alleged and supported by proof that plaintiff was caused to fall between two moving freight cars and dragged some distance and severely injured.
While there is serious dispute of plaintiff's explanation of the cause of his injury, both by witnesses and by circumstances, which would ordinarily provoke a close scrutiny of its reasonableness, the peremptory instruction requested by the defendant was properly refused. We shall not rehearse or comment on the facts since we feel compelled to reverse the case for an error in law.
The third instruction for the plaintiff is in the following language:
"The court instructs the jury for the plaintiff that if you believe from the evidence in the case that the defendant railroad company delegated to its brakeman or flagman the duty with reference to handling trespassers or persons riding upon its freight trains without authority of the company, either by its printed rules or by bulletin or special instructions to eject trespassers from its trains or take them to the conductor, then the defendant was charged with the common knowledge that servants and agents sometimes disobey the orders of their masters, and if you believe from the evidence in the case that the plaintiff was riding defendant's freight train and that its flagman or brakeman wilfully or maliciously ejected said plaintiff from said train while it was running or in motion and the plaintiff was injured, then under the law the defendant railroad company is liable to plaintiff for the acts of its said servant in so ejecting the plaintiff and the plaintiff is entitled to recover from the defendant for the damages, if any, sustained as a proximate result of being so ejected from the defendant's train." That part of the instruction which is objectionable is italicized.
The effect of the instruction is two-fold: the jury was told by the court, (1) that disobedience by servants, being a matter of common knowledge, could be accepted and considered by them as a proven fact; (2) that such disobedience here assumed as being habitual and accepted as a fact could be taken into account in impeaching the testimony of the flagman. In resisting the defendant's attack upon this instruction, plaintiff contends that the purpose of the clause was to advise the jury that it was not necessary to prove that appellant knew plaintiff had been knocked off the train. But the damaging import of the language, aside from its vice as being suggestive and upon the evidence, is that its tendency is to influence the jury upon the factual issue as to whether the flagman assaulted plaintiff at all. In reversing a case where an instruction on common knowledge was condemned, this court stated in Illinois Cent. Railroad Co. v. Greaves, 75 Miss. 360, 22 So. 804, 805, "We fear this charge so far misled the jury as that the evidence was disregarded, and the issue determined by common knowledge."
It is reasonable to assume that plaintiff borrowed the quoted language from Loper v. Yazoo M.V.R. Co., 166 Miss. 79, 145 So. 743, 745, where, in discussing the principle that a master's responsibility includes not only those acts committed in the line of the servant's assigned duties but also those acts done in the abuse or disobedience thereof, the court said "disobedience of servants to instructions as to the particular manner in which their duties should be discharged is so frequent as to become a matter of common knowledge of which employers must take notice." Waiving any discussion as to whether such disobedience is so established as to be a subject of judicial notice and thereby accepted as a fact, it is evident that this court was not laying down such a rule of substantive law as alone should compose instructions to juries. The language quoted sought to measure the responsibility of the master by charging him with knowledge that an abuse of orders is likely to occur, and thereby projecting his responsibility into those areas of action which are adjacent to the prescribed channel of duty and into which the servant is apt to transgress in an occasional deviation from an orderly course. Since the servant is never authorized to commit negligent or tortious acts the master would never become liable unless he were charged with responsibility for acts which stemmed from the servant's line of duty. It was appropriate, therefore, to emphasize that the master must be compelled to retain the risk and responsibility for any disobedience, whether of nonfeasance or misfeasance, which arose out of and was incidental to the performance of prescribed duties.
The principle of judicial knowledge is a rule of evidence and not of substantive law. It supplies evidence by dispensing with the necessity for adducing proof as to matters of common knowledge. It may be common knowledge that a defendant on trial for his life is inclined to recall only such facts as may be useful to his defense and to so color circumstances as to diminish their visibility as incriminating, yet it would be error for the trial court to remind the jury of such probability. If a fact is a matter of common knowledge the jury need not be so told by the court; if it is not, they should not be. Such matters may be taken into account either by the court or the jury, but they are, in fine, matters of evidence and as such are not suitable material for instructions. Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Finley v. Hunt, 56 Miss. 221; Davis v. State, 89 Miss. 119, 42 So. 541. To say that the jurors are free to integrate common knowledge into their reasoning is to say that they should be left free to do so. Their mental processes should be unaffected by any suggestion by the trial court. Hartley v. State, 161 Miss. 667, 137 So. 518; M. A. Motor Freight Lines v. Villere, 190 Miss. 848, 1 So.2d 788. The quoted instruction, therefore, is palpably upon the weight of evidence, suggestive and argumentative. Other instructions on behalf of the plaintiff adequately stated the law of the defendant's responsibility as including all acts done by the servant while assuming to act within the scope and under authority of his employment and directions.
We have repeatedly discouraged the practice of borrowing language from the reasoning of written opinions. Isolated from its context, or sought to be translated from mere discussion into substantive law, it is apt to become invested with a quality wholly inappropriate for use in instructions. Unless clearly stated as legal principles, the unwisdom of construing them as such is here again emphasized. Alabama G.S.R. Co. v. Daniell, 108 Miss. 358, 374, 66 So. 730; McRae v. Robinson, 145 Miss. 191, 110 So. 504; Kroger Grocery Co. v. Lewelling, 165 Miss. 71, 82, 145 So. 726; Crawford v. City of Meridian, 174 Miss. 875, 879, 165 So. 612.
Reversed and remanded.