#### Solberg, Appellant, vs. Robbins Lumber Company, Respondent.

*October 24*

*November 14, 1911.*

*Appeal: Affirmance and, reversal: Trial: Instructions to jury: Statements of fact: Injury to servant from unguarded saw: Jury: View: IIse of juror’s personal knowledge in weighing testimony.*

1. A mere possibility that tbe trial court was wrong in stating something as a fact to the jury is not ground for reversal of the judgment, especially where there was evidence strongly tending to support the court’s conclusion and none to the contrary, and the jury, aided by a view, were in a position to determine whether the statement was correct, and the trial court’s attention was not in any way called to the alleged misapprehension of the facts.

2. So *held,*in an action for injuries to an employee in a planing mill caused by his hand coming in contact with uncovered saws in a lath machine, where the trial court instructed the jury that if they found plaintiff had ever, before the injury, raised and lowered the saws in question by means of a little wheel under the lath machine table, then they should conclude that he must have seen the saws and known that they were not covered.

3. The knowledge which jurors acquire from a view may be used by them in determining the credibility of testimony or the correctness of statements of fact by the court.

4. In determining the credibility of testimony one or more jurors may use the knowledge which they have gained from observation and experience not common to all the jurors, and may give the benefit of such knowledge to their fellow jurors.

5. Considered in connection with the general charge in this case, in which the jury were repeatedly told that they should find the facts from the evidence given in court, and in connection with the question asked by a juror as to their right to use their special knowledge "in weighing this evidence,” the language of the trial court in answering such question — to the effect that a juror who has personal expert knowledge is entitled to use it in assisting him and in assisting the other jurors in arriving at a right verdict — is *'held,*though somewhat ambiguous in itself, to accord with the foregoing rule and not to have misled the jury into supposing that they might treat their special knowledge as evidence or use it otherwise than in determining the credibility of the testimony offered by the parties.

*260Appeal from a judgment of tbe circuit court for Oneida county: A. H. Reid, Circuit Judge.

*Affirmed.*

Tbe complaint alleged that tbe defendant was engaged in tbe business of manufacturing and dressing lumber, and tbat defendant bad in operation in its planing mill a machine known as a “matcher,” equipped with rapidly revolving knives and gearing, tbe frame of wbicb was about fifteen feet long and six feet wide, tbe machine being used for surfacing lumber; tbat one foot distant from tbe rear end of such matcher a machine known as a lath machine was installed, tbe front end of wbicb faced tbe matcher, tbe beds of. tbe two machines being on a level. These machines were used con-junctively, lumber being passed from tbe bed of tbe matcher to tbe lath machine. Tbe framework of tbe lath machine was about five feet long, three feet wide, and four and one-half inches up and down, and tbe bed or frame plate attached to tbe top of tbe frame was about three feet from tbe floor. Above tbe frame plate were a number of small rotary saws, and immediately below and seven inches back of tbe front end of tbe frame plate were two rotary saws, nine inches in diameter, in perpendicular position, extending about three and one-half inches below such plate. Tbe saws were attached to an axle connected with shafting and belting propelled by steam power. Eor tbe purpose of raising and lowering these saws there was a small wheel underneath tbe frame plate, to one side of and about on a line with tbe saws. Plaintiff began work for tbe defendant about November 1, 1908, and in the performance of bis duties was required to operate said matcher. On tbe morning of November 5 th a large pile of sawdust and other mill refuse had accumulated on tbe floor between tbe matcher and tbe lath machine. "It is alleged that it was necessary for plaintiff to oil a spindle cock underneath the matcher, and that in attempting to remove the sawdust and refuse to make room for him to crawl under the machine as was necessary in order to accomplish *261his purpose, his right hand came in contact with the uncovered and unguarded lath machine saws, as a result of which plaintiff’s hand was injured. The complaint further alleges violation of sec. 1636/, Stats. (1898), for failure to properly fence or guard the saws on said lath machine. The answer puts in issue all the material allegations of the complaint, and alleges that such injury was not caused by any negligence on the part of the defendant, but was due to negligence and want of ordinary care on the part of the plaintiff. By its answers to questions submitted on a special verdict the jury found, among other things, that plaintiff knew and appreciated the danger of coming in contact with the saws, and that plaintiff by his failure to use ordinary care proximately contributed to produce his injury. The court ordered judgment dismissing the complaint, from which judgment this appeal is taken.

*W. K. Parkinson,*for the appellant.

Eor the respondent there was a brief by *E. D. Minahcm*and *Aarons &*Niven> and oral argument by *O. L. Aarons.*

BauNes, J.

Appellant insists that the court erred in giving the following instruction to the jury:

> “And you should consider and decide whether the plaintiff ever raised and lowered the saws in question by means of the little wheel under the lath machine table, and if you find that he did so before his injury then you will conclude that he must have seen the saws and known that they were not covered, and in that event you should take that into consideration.”

The fault found with the instruction is that the court assumed that it was an established and undisputed fact in the case that the plaintiff must have seen the saws of the lath machine and have known that they were not guarded, if he raised these saws by means of the wheel under the table of the machine, whereas the jury would be warranted in reaching a contrary conclusion on the evidence.

*262A reading of tbe testimony does not throw any satisfactory • light on the question, as very little of it pertains to the point and that only in an incidental way. In fact, there does not appear to have been much of a controversy upon the question on the trial. A photograph showing the wheel and the projection of the saws under the table of the lath machine, as well as the absence of a guard, was in evidence. Respondent argues that this photograph shows to a demonstration that the court was right. The trial judge in his opinion on the motion for a new trial stated that it was perfectly obvious from an inspection of the photograph that it was impossible to look for and find the little wheel under the lath machine table, by means of which the saws were raised and lowered, and which was located within a few inches of the saws, without seeing the saws and observing that they were unguarded. The conclusion of this court is that it is highly improbable that plaintiff did not see the saws during the operation, but that it is not an impossibility. The questions, therefore, are: Does the record show that the court erred, and, if so, was the error prejudicial?

Some significance should be attached to the fact that plaintiff’s counsel did not in any way call the attention of the court to the alleged misapprehension of the facts, as we think is customary though perhaps not obligatory. Trial courts are uniformly careful not to invade the province of the jury in determining questions of fact, and if the court’s attention had been called to the alleged error it would undoubtedly have been corrected, if error it was.

The court and the jury viewed the premises and the machines in question. The knowledge which jurors acquired from such view they had the right to use in determining the credibility of the evidence offered. *Washburn v. M. & L. W. R. Co.*59 Wis. 364, 368, 18 N. W. 328; *Neilson v. C., M. & N. W. R. Co.*58 Wis. 516, 523, *17*N. W. 310; *Johnson v.*Boorman, 63 Wis. 268, 22 N. W. 514; *American States S. Co.**263*v. M. N. R. Co.*139 Wis. 199, 205, 120 N. W. 844, and cases cited. This being so, they bad tbe right to use such knowledge in determining whether the.court made a correct statement of fact. We have no means of knowing just what knowledge the jury imbibed from this view. The jurors might have reached a different conclusion from that arrived at by the court and might have disregarded his mistake entirely in arriving at a verdict, if any mistake was in fact made.

Sec. 3072TM, Stats. (Laws of 1909, ch. 192), provides:

> “No judgment shall be reversed ... on the ground of misdirection of the jury, . . . unless in the opinion of the court to which the application is made, after an examination ■of the entire action, ... it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment.”

After examining the record this court is far from being satisfied that the trial court committed any error. The evidence offered, as far as there is any, strongly tends to support the conclusion of the trial court, and there is no evidence to the contrary. There is, of course, the possibility that the trial court was wrong, but this falls far short of an affirmative showing of prejudicial error, or in fact of any error. Under such circumstances the judgment should not be reversed. *Wiese v. Biley,*146 Wis. 640, 132 N. W. 604.

After the jury had been deliberating for some time they were called into the court room and the following colloquy took place:

> “A Juror: A question we want to know was this: I asked ■you the other day if in deciding this question jurors were supposed to take into consideration the things in regard to this: — in case they positively know this from experience. Eor instance, if one has, to use a hypothetical case, if he is an expert, is the juror supposed to use the information that he’knows in regard to that in weighing this evidence and convincing other jurors as to the facts of the case ?

> *264“The Court: I understand your question, I think. It is usual to instruct a jury in some cases that they are expected to use all of the knowledge, skill, and judgment that they possess and bring that to bear upon questions involved. A juror who has expert knowledge, that is personal, not hearsay, is entitled to bring that to hear in assisting him and in assisting the other jurors in arriving at a right verdict. In fact it is impossible to separate a juror from his personal knowledge any way and he is expected to use that. That is part of his mental equipment in discharging his duty.

> “The Juror: In this case it has developed there are several that understand the construction of these machines. We can’t very well separate from—

> “The Court: You are not required to separate that knowledge from anything else. You are entitled to use it.”

It is argued that the court committed prejudicial error in that the jury were advised that they might return a verdict upon their knowledge or supposed knowledge not derived from the evidence in the case. The language used by the court was not happy, in that there is a possibility that it might have misled the jury into the belief that they were at liberty to treat their knowledge as evidence and decide the case upon such knowledge rather than upon the testimony, and even in opposition thereto. This they might not do. *Washburn v. M. & L. W. R. Co.*59 Wis. 364, 310, 18 N. W. 328; *Johnson v. Boorman,*63 Wis. 268, 22 N. W. 514; *Sherman v. Menominee River L. Co.*77 Wis. 14, 22, 45 N. W. 1079. The court told the jury at the beginning of its charge:

> “It is your duty to answer these questions according to the fact in each instance as you shall find the fact to be from *the evidence given here in court.*... In deciding these questions you should confine your consideration to *the evidence given here in court*and the proceedings had here in your presence.”

As to each of the questions propounded to the jury, they were told in substance to answer them according to the preponderance of the evidence. The charge repeatedly in*265formed tbe jury tbat tbe case must be decided upon tbe evidence given on tbe trial. Tbe juror wbo asked tbe question above quoted undoubtedly so understood tbe charge, because be did not ask if tbe jurors might use their special knowledge as evidence^ but if tbe jurors *might consider such knowledge in weighing the testimony offered*by tbe parties.

In view of the repeated statements of tbe court above referred to, we tbinlc tbe jury would construe tbe somewhat ’ambiguous language of tbe court as no more than an affirmative answer to tbe question asked and as informing them tbat jthey might use tbe knowledge which they bad gained from observation and experience in determining tbe credibility of tbe evidence-j What tbe juror said in effect was tbat be and some of bis fellow jurors bad practical knowledge of tbe construction of lath machines, not common to all tbe panel. Tbe language used by tbe court was certainly no more calculated to mislead than tbe charge which was held not to be erroneous in *Neanow v.*Uttech, 46 Wis. 581, 586, 1 N. W. 221. There tbe court instructed as follows:

> “You are to bring to bear upon this question [tbe exercise of ordinary care], your own knowledge and your own judgment. It is for you to examine all tbe testimony, all tbe surroundings, all the circumstances, and then apply your own judgment, your own good sense, and answer tbe question either in the negative or affirmative.”

There was no assertion tbat tbe jurors bad any knowledge of tbe specific facts in tbe case on trial, and nothing to indicate tbat tbe juror wbo asked tbe question or any of bis associates was a competent witness rather than a qualified juror. It is well settled tbat jurors cannot supply a material item of evidence by assuming knowledge on tbe subject. It is just as well settled tbat it is highly improper for a juror to assert in tbe jury room knowledge on some specific point involved in tbe trial which would make him a material witness. If use is to be made of such knowledge it should be given under *266oath from the witness stand, where the party adversely affected would have the right of cross-examination.

So we think the real question here is, May one or more jurors use the knowledge which they have gained from observation and experience not common to all the jurors in determining the credibility of the evidence offered, and give the benefit of such knowledge to their fellow jurors who may lack such information ? Lawyers know that jurors always have and always will do just what we think the court in effect said might be done here, and it is difficult to see how they could well do otherwise, [if a juror knows that a plaintiff in an action is a man of character and standing, whose word is as good as his bond in the community in which he lives, and that the defendant is shifty, tricky, untruthful, and unreliable, and a question of veracity arises between the two, it is well nigh impossible for him to remain oblivious to the facts which he knows when he is determining the question of credibility?! So, too, when one witness testifies to something which the observation and experience of the juror tells him is false, while another witness has testified in reference to the same matter to what he knows to be the truth, it is difficult to imagine how a juror could disregard what he knows in passing upon the credibility of the witnesses. If he could do it, it is not desirable that he should, because that knowledge is part of the equipment which he brings with him to the jury box. A person is not supposed to forget everything he ever knew and become an automaton when he is sworn as a juror. He may make use of the intelligence with which he is endowed and the knowledge he has gained for the legitimate purpose of passing upon the credibility of the evidence.

It is said in the discussion of the first error assigned that jurors may use the knowledge which they acquire from a view of the *locus in quo,*in passing upon the credibility of evidence, and the proposition is well settled by the cases cited and referred to. Knowledge gained in this way is no more *267sacred than knowledge acquired in some other way, provided it is actually acquired. It is proper for trial courts to instruct juries that in weighing testimony they must take into consideration their knowledge, observation, and experience. Such an instruction has been approved by this court. *Johnson v.*Boorman, 63 Wis. 268, 274, 275, 22 N. W. 514. Juries are frequently and properly told that in determining the credibility of testimony they may consider the appearances of witnesses on the stand, the manner in which they give their testimony, and the candor or lack of candor with which it is given. So, too, it has been held proper to instruct a jury in a personal injury action brought by a minor that they might consider the plaintiff as he had been exhibited before them on the witness stand, in determining the question of his intelligence and capacity to apprehend and avoid the dangers incidental to his employment. *Disotell v. Henry Luther Co.*90 Wis. 635, 64 N. W. 425. In fact, cases in this court and generally elsewhere .are to the effect that jurors may use common knowledge in deciding the weight that is to be accorded to the evidence adduced.

There is authority for the proposition that the knowledge which a juror may use in enabling him to pass upon the credibility of testimony must be knowledge that is common to all the jurors, and an *obiter*expression in *Northern S. Co. v. Wangard,*123 Wis. 1, 100 N. W. 1066, might well be understood as so holding. This would seem to be a narrow rule if not an unwise one. The knowledge which men acquire in the rugged school of experience is a valuable asset to them when they are called upon to perform jury duty. If there is a conflict in evidence pertaining to some fact upon which a farmer has acquired knowledge by his experience which is not common to the general run of mankind, but which enables him to decide with accuracy who is telling the truth, the half dozen farmers who may be on a jury should be permitted to use that knowledge and give their *confreres*the benefit of it. *268Tbe other jurors are not bound to accept the statements as conclusive, but may give them such weight as they think they are entitled to. What is true of the farmer is true of those following other vocations. Usually our juries are cosmopolit tan in character, being made up of the farmer, the mechanic, the business man, and the ordinary laborer. It is largely because juries are selected from all the walks of life that they ordinarily make such desirable triers of fact. Some juror? on almost every panel are at least apt to have some knowledge that is not common to all the jurors, and which may be a valuable aid in separating false or mistaken testimony from that which is true. Take the ordinary case of an accident at a street crossing, where the alleged negligence consists in running a car at an excessive rate of speed, and some witnesses swear that it was running thirty miles an hour, while others say it was running but three or four miles an hour, and the undisputed evidence is that the car was stopped within ten feet or less from the place of collision. Many jurors who live in rural districts may not know anything about the distance within which a car may be stopped. Other jurors may know from their observation and experience that a car going at the rate of thirty miles an hour cannot be stopped in ten feet. Must they divest themselves of this knowledge because it is not common to all the jurors? We do not think so. Looking at the question from a practical point of view, they cannot do so, and there is little use in building up a theoretical rule of law that will not and in fact cannot work when it is put to practical application. There is a greater dearth of authority upon the point than one would expect to find. The Massachusetts court, without discussion or citation of authority, intimated, if it did not decide, in *Schmidt v. New York Union Mut. F. Ins. Co.*1 Gray, 529, that a juror could use his personal knowledge of some particular fact in weighing evidence only when the fact was a matter of *common*observation or general knowledge. The South Carolina court *269bolds tbat a juror wbo bas knowledge of tbe infamous character of a witness may use tbat knowledge in passing upon the credibility of tbe witness, although it may not be common to all tbe jurors, and in support of its conclusion says, in *State v. Jacob,*30 S. C. 131, 136:

> “While it is undoubtedly true tbat a jury is not at liberty to consider any fact pertinent to tbe issue which they are called upon to try, unless it is found in tbe testimony adduced, even though such fact may be known to some one, or all, of tbe jury; yet this rule does not, and cannot, from tbe very nature of things, forbid a juror, in weighing tbe credibility of tbe testimony, from taking into consideration bis own knowledge of the character of tbe witness delivering such testimony. Tbe credibility of testimony is a question exclusively for tbe jury, and we do not see bow it is possible for a juror in considering tbat question to exclude from bis mind bis own knowledge of tbe character of tbe witnesses. Tbe question is, what impression does tbe testimony make upon tbe minds of the jurors, and tbat impression must necessarily be affected by their own knowledge of tbe character of the witnesses from whom such testimony proceeds. We suppose tbat it rarely, if ever, happens tbat tbe character of at least some of tbe witnesses is not known to some or all of tbe jurors, and we do not see bow any rule of law can prevent such knowledge from having its weight. If a fact is testified to by a witness whom tbe jurors know to be of such an infamous character as to render him totally unworthy of belief, it is difficult to understand bow any rule of law can compel a jury to believe tbat which they cannot believe. Tbe constitution of tbe human mind renders such a rule as tbat contended for utterly impracticable.”

To tbe same effect is *McKain v.*Love, 2 Hill (S. C.) 506.

Tbe form of instruction tbat appears to be most generally approved is, tbat tbe jury in examining tbe evidence and in determining tbe weight to be given to it may use such general practical knowledge as they may have upon tbe subject. *Willis v. Lance,*28 Oreg. 371, 43 Pac. 487; *Douglass v. Trask,*77 Me. 35; *Johnson v. Hillstrom,*37 Minn. 122, 33 *270N. W. 547; *Kitzinger v. Sanborn,*70 Ill. 146; *People v. Zeiger,*6 Parker’s Grim. Rep. 355; 1 Brickwood’s Saekett on Instructions, § 410.

This rule does not say, and we think it does not mean, that the knowledge must be common to all the jurors. We conclude that the instruction, rightly understood, was not erroneous. Moreover, we do not think that the instruction could prejudice the jury in answering the questions which were answered adversely to the contention of the plaintiff.

*By the Court.*— Judgment affirmed.