VIEW BY JURY.

[Franklin Circuit Court,

January Term, 1893.]

Stewart, Shauck and Shearer, JJ.

#### *COLUMBUS (CITY) v. BIDLINGMEIER.

View of Premises is to Enabde J cry to Appey Evidence.

A view under Revised Statutes, sections 5189¿ and 5191, is solely to enable the jury to apply the testimony adduced upon the trial; and an instruction that the jury must consider such view as evidence in the case is error.

Error to the Court of Common Pleas of Franklin county.

This was an action brought by the defendant in error to recover damages occasioned by a change of grade of the street in the rear of his lot, it being alleged that the grade established was unreasonable, and cut off access to his lot. Issue was joined on these allegations, and upon the trial of the case to a jury a verdict was rendered in his favor, and a motion for a new trial having been overruled, judgment was entered upon the verdict. A bill of exceptions containing all the evidence and the charge of the court was duly taken, and the city now asks a reversal of the judgment on the ground that it is contrary to the weight of the evidence, and that the court erred in its charge to the jury.

*

 The decision of the Supreme Court in Machader v. Williams, 54 Ohio St., 344, is to the same effect. The cireuit decision is followed in Besuden v. Comrs., 4 Circ. Dec., 575; and is cited as authority in Railroad Co. v. Gaffney, 6 Circ. Dec., 94.

STEWART, C. J.

It appears from the record that.during the progress of the trial the jury were sent to view the premises, and the court among other things charged the jury as follows: “The question whether the grade was a reasonable one at the time it was fitted, is one which you must decide upon ihe evidence given in this case, and all the facts and circumstances detailed, including your personal examination of the property and street.” This portion of the charge was duly excepted to by the city, which claims that the court erred in telling the jury that they might take into consideration in deciding the case what they had learned by a personal inspection of the property. At common law a view by the jury was only taken in certain real actions, and was so taken upon the theory that the jury were acting not only as triers of the facts, but as viewers, and it was intended that in that way they should procure evidence to assist them in arriving at a conclusion. Now, however, the whole subject of a view by the jury is regulated by statute, and it seems to us that our statutes provide for two kinds of view by the jury: one in which they are to act as viewers, and the other in which they view the premises solely in order to enable them the better to apply the testimony adduced on the trial. The first of these is found in Rev. Stat., secs. 4467 and 4580, in which the jury are sworn to examine and determine the matters in controversy “faithfully, impartially, and to the best of their ability, and from actual view of the premises, etc.”

The view of the jury in this case was had under the provisions of Rev. Stat., secs. 5189i and 5191,' which contain no such provisions. The distinction to which we have referred is clearly recognized in the case of Williams v. Lockoman, 46 O. S., 416, where the court say (p. 417): “The provisions of sec. 4467 manifestly contemplate, that by an actual view of the premises, the jury will be enabled not only the better to apply the testimony disclosed on the trial, but shall also be aided by their personal knowledge of the facts as derived from an actual view of the *699premises, in examining and determining the particular matters appealed from.” And we are therefore of the opinion, from an examination of our own statutes, showing that in some of them the legislature has expressly authorized the jury to take into account in reaching a verdict their own view of the premises, and that such authorization is omitted from the statute under the provisions of which the view in this case was had, that it was error for the court below to charge the jury as it did in that portion of the charge heretofore quoted. This case, we think, illustrates the reason for our holding. That the grade of this street had been changed from its natural condition was clear; that access to plaintiff’s lot was rendered difficult, if not well nigh impossible, was equally clear, and both of these facts were apparent to any one who saw the premises. But they were by no means decisive of the case in plaintiff’s favor. The plaintiff, having erected his buildings before the grade of this street had been established, could only recover damages for injuries sustained by the subsequent establishment of an unreasonable grade. Akron v. Chamberlain Co., 34 O. S., 328. The question then for the jury to determine was whether this was an unreasonable grade, and this could only be determined by taking levels and making measurements; for rhe grade of a street in a city cannot be determined with reference to any particular lot, but with reference to its points of beginning and ending, and with reference to the established grade of streets which it is designed to connect; and the grade on one of such streets in this case was established many years before the plaintiff bought his lot. The evidence adduced in this case was manifestly in favor of the city upon this, the determining issue, and the court below ought to have sustained the motion for a new trial upon that ground. But evidently attaching much importance to the view made by the jury, the court allowed the verdict to stand, although contrary to the evidence adduced by'the parties upon the trial. The logical result of a charge, such as was given in this case, was reached in the case of Railroad v. Cochran, 10 Ind. 560, where the court say that although the bill of exceptions purports to contain all the evidence, it appearing that the jury viewed the premises, the reviewing court could not pass upon the weight of the evidence, as it was impossible to tell what the jury saw and learned from the view. This case was overruled in Railroad v. Bowen, 40 Ind., 545, in which case was laid down what we think to be the true rule, that the view by the jury was not for the purpose of obtaining, but applying evidence. In the case of Close v. Samm, 27 Ia., 503, where a statute similar to secs. 5189i and 5191 was construed, Cole, J„ says:

> ‘'The question then arises as to the purpose and intent of this statute. It seems to us that it was to enable the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them; and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in rest ect to which no opportunity for cross-examination or correction of error, if any, could be afforded either party.” To the same effect are the cases of Heady v. Turnpike Co., 52 Ind., 117; Wright v. Carpenter, 49 Cal., 609, and Brakken v. Railroad, 29 Minn., 41.

The conclusion which we have reached in this case finds support in the views expressed in 12 Amer. & Eng. Enc. 369, and 26 Cent. Law Jour., 436, where the conflicting opinions are carefully examined and analyzed. We are aware that a contrary view is expressed in Wharton on Evidence, sec. 346, and in Thompson on Trials, sec. 895, but an examination of the authorities cited by those authors satisfies us that they are either not supported by the better reason, or are cases in which the jury make the view in the capacity of viewers.

For the reasons, therefore, that the judgment is contrary to the manifest weight of the evidence, and that the court erred in its charge to the jury on the *700subject of the view, the judgment will be reversed, with costs, and the cause remanded for further proceedings according to law.

Paul Jones, City Solicitor, for plaintiff, in error.

Heitmann & Friesner, for defendant in error.