CHAPTER XVII INSTRUCTIONS Sections 1217. Definition. 1218. Province of court. 1219. Defining words and terms. 1220. Verdict-Findings-Deliberations and determination of jury-Argugument of counsel. 1231. Withdrawal of instructions. 1232. Instructions on issues. 1233. Applicability to pleadings and evidence. 1234. Positive and negative evidence. 1235. Limiting effect of evidence. 1236. Matters of general knowledge. 1237. Requested instructions. 1237a. Objections and exceptions. 1238. Forms. § 1217. Definition "Instructions" are directions in reference to the law of the case, enabling the jury to better understand their duty, and prevent them from arriving at erroneous and wrong conclusions.1 § 1218. Province of court It is the province of the court to determine and define the issues, and the duty of the jury to accept the interpretation of the pleadings made by the court and follow its directions.2 While the court may not comment on the weight of evidence, nor assume the existence or nonexistence of controverted facts, it may 1 Leavitt v. Deichmann, 30 Okl. 423, 120 P. 983; Butler v. Gill, 127 P. 439, 34 Okl. 814; Hanson v. Kent & Purdy Paint Co., 129 P. 7, 36 Okl. 583. 2 Stevens v. Maxwell, 70 P. 873, 65 Kan. 835. refer to parts of evidence or lines of evidence offered by the respective parties, and make concrete applications of the law to them.3 The court should clearly state all the law necessary to explain fully a point of vital importance in the case, and not submit to the jury any of the legal questions involved.* The existence of a statute is a question of law to be determined by the court.5 The interpretation of a written contract is for the court, and the relation of the parties as well as their obligations under it should be determined by the court and embodied in the charge to the jury." 3 Haines v. Goodlander, 84 P. 986, 73 Kan. 183. 4 Atchison, T. & S. F. Ry. Co. v. Woodson, 100 P. 633, 79 Kan. 567. In an action for injuries received while alighting from a moving train, held error to instruct that the question of negligence is one for the jury alone, and that they are the sole judges of that question, and that the law takes that out of the province of the court. Midland Valley R. Co. v. Bailey, 124 P. 987. 34 Okl. 193. It is the duty of the court to advise the jury of the duties which the law imposes, and, where there is a conflict in the evidence, it is the func tion of the jury to determine whether these duties have been violated. Id. Where, under a contract, one telephone company places wires on the poles of another, and an employé of the former is killed while stripping the wires of the owning company from a defective pole belonging to the lessor company, the duty of the owning company to the leasing company and its employés as to maintaining the poles in a safe condition for the employés of the leasing company and its liabilities for injuries to such employé is a matter of law for the court, and it is error to leave the same to the jury. Aaron v. Missouri & Kansas Telephone Co., 114 P. 211, 84 Kan. 117. Where the nature and extent of a railroad company's liability, if any, depended largely upon the construction of the terms of an ordinance of a city of the second class, granting the defendant's lessor the right to build and maintain its tracks over and along certain streets of said city, it was error for the trial court to leave the construction of the ordinance entirely to the jury, without giving them any guidance as to the interpretation thereof. Atchison, T. & S. F. R. Co. v. Anderson, 50 P. 603, 6 Kan. App. 923. It is not error to refuse an instruction that a railroad corporation is entitled to the same protection under the law as individual litigants, where it does not appear that there was any reason to distrust the integrity of the jury or impute partiality or prejudice to them. Central Branch U. P. R. Co. v. Andrews, 21 P. 276, 41 Kan, 370. It was prejudicial error, in submitting special questions by request, to state, "I want the jury to understand that these questions are got up to befuddle and mislead the jury, so that there will be error in the trial of this case, so that the verdict may be set aside." Cone v. Citizens' Bank, 46 P. 414, 4 Kan. App. 470. 5 Johnson v. Grady County, 50 Okl. 188, 150 P. 497. 6 Aaron v. Missouri & Kansas Telephone Co., 114 P. 211, 84 Kan. 117. Instruction as to rights of seller on breach of contract by purchaser held not § 1219. Defining words and terms Technical words used in an instruction need not be defined, if the same as used are made definite and intelligible to the jury." Unless the jury are properly instructed as to the meaning of the term "reasonable," it is error to charge that they may consider reasonableness as a basis for setting aside a deed. It is error to submit the question of residence without some definition of the term where that is the controlling question, and it is left in grave doubt by the evidence, and the attention of the court has been drawn to such necessity." Where it becomes necessary for the jury to determine whether an act conceded to be wrongful was justified by probable cause, the definition of that term and the rules by which it must be ascertained should be fully stated to the jury.10 It was error in a personal injury suit, for the court to refuse to define the term "ordinary care." 11 The jury are to decide what weight, if any, shall be given to the opinion or evidence of an expert, and it is error for the court to instruct them as to the weight of such evidence.12 If the facts pleaded and found amount to undue influence, it is not error to define undue influence, though not expressly pleaded as a defense to the contract sued on.1 13 subject to complaint that it left to the jury a question of law. Capper v. Manufacturers' Paper Co., 121 P. 519, 86 Kan. 355. 7 White v. Madison, 83 P. 798, 16 Okl. 212. The word "intoxicated" as used in application for life policy must be understood in its ordinary sense, and it is unnecessary that it be defined in instructions to jury. Mutual Life Ins. Co. v. Johnson, 64 Okl. 222, 166 P. 1074. 8 Coblentz v. Putifer, 125 P. 30, 87 Kan. 719, 42 L. R. A. (N. S.) 298. 9 Murray v. Geiser Mfg. Co., 99 P. 589, 79 Kan. 326. 10 Atchison, T. & S. F. Ry. Co. v. Woodson, 100 P. 633, 79 Kan. 567. 11 City of Junction City v. Blades, 41 P. 677, 1 Kan. App. 85. 12 Kansas City, W. & N. W. R. Co. v. Ryan, 30 P. 108, 49 Kan. 1. Instructions that "in all cases" expert testimony "should be received and weighed with caution" are erroneous. Atchison, T. & S. F. R. Co. v. Thul, 4 P. 352, 32 Kan. 255, 49 Am. Rep. 484. Where expert testimony is admitted, and the court thereon instructs the jury as follows: "It is your own opinion upon the matter, and the conclusions you draw from the facts proven, that should determine your verdict, and not what any other person says or thinks”—held, that such instruction is erroneous and misleading, and in effect excludes from the consideration of the jury such expert testimony. Ball v. Hardesty, 16 P. 808, 38 Kan. 540. 13 Snyder v. Rosenbaum, 215 U. S. 261, 30 S. Ct. 73, 54 L. Ed. 186, affirming Snyder v. Stribling, 18 Okl. 168, 89 P. 222. § 1220. Verdict-Findings-Deliberations and determination of jury-Argument of counsel It is not error to refuse general instructions covering the law of the whole case, when particular questions of fact are submitted to the jury, and they are not required to render a general verdict." Where special questions are submitted, it is error to charge the jury to make their special findings conform to their general verdict.15 It is error to instruct a jury that their answers to particular questions of fact submitted should be consistent with their general verdict.16 The refusal of the court to charge that each juror must ultimately act on his individual judgment, where it does not appear that there is any special necessity for such an instruction, or that any preju dice resulted therefrom, is not reversible error.17 Although a court may be justified in refusing to set aside a verdict in condemnation proceedings, rendered by the jury on the "average theory," yet the trial court ought not to suggest to the jury, if the witnesses differ as to values, that they ascertain what the average of the estimates are first, and then afterwards decide whether such an average is fair or full value.18 The court cannot be required to instruct the jury on the province of counsel in arguing the cause in advance of the argument.1o 14 Warden v. Reser, 16 P. 60, 38 Kan. 86. 15 Kilpatrick-Koch Dry Goods Co. v. Kahn, 36 P. 327, 53 Kan. 274. 16 Coffeyville Vitrified Brick Co. v. Zimmerman, 60 P. 1064, 61 Kan. 750. 17 Central Branch U. P. R. Co. v. Andrews, 21 P. 276, 41 Kan. 370. 18 Kansas City, W. & N. W. R. Co. v. Ryan, 30 P. 108, 49 Kan. 1. 19 Parrish v. Parrish, 72 P. 844, 67 Kan. 323. Since defense of negligence is at all times a question for the jury, under Const art. 23, § 6, it is error for court to instruct that certain stated facts or circumstances, constitute contributory negligence. Sweet v. Henderson (Okl.) 178 P. 666. Under Const. art. 23, § 6, held that the court properly refused to instruct that if the jury found certain facts to exist such facts as a matter of law would constitute contributory negligence and the jury should so find. Pioneer Hardwood Co. v. Thompson, 49 Okl. 502, 153 P. 137. An instruction that if trapdoor in floor of vestibule was open while train was in motion and by the utmost diligence the carrier could have had it closed, and plaintiff without negligence fell through, it is sufficient to raise a presumption of negligence of the carrier and does not invade the province of the jury. Chicago, R. I. & P. Ry. Co. v. Dizney, 61 Okl. 176, 160 P. 880. The court may instruct what the amount of recovery shall be if plaintiff re § 1221. Province of jury An instruction that in determining the credibility of defendant, and the weight to be given his testimony, the jury should consider the fact that he is the defendant, and the interest he has in the result of the trial, and that the weight and credit to be given his testimony should be determined from a consideration of the other evidence in the case, does not invade the province of the jury.20 Nor does an instruction naming certain facts which the jury may consider with the other facts, but making no comment as to their weight or the credibility of the witnesses, does not invade the province of the jury.21 Where plaintiff testifies to a given state of facts and is contradicted by a number of witnesses, it is not error to instruct that the testimony of one witness may be entitled to more weight than the testimony of many others, if the jury believe that such other witnesses have knowingly testified untruthfully and are not corroborated.22 An instruction invades the province of the jury where it states that a party producing a witness at the trial of a cause thereby vouches for his veracity,23 assumes the truth of controverted facts,2* or assumes as a fact a material matter which is not proven. 25 A judge, in his charge to the jury, should not express an opinion cover, where there is no controversy over the amount, provided the jury first find the controverted issues for plaintiff. Jones v. S. H. Kress & Co., 54 Okl. 194, 153 P. 655. 20 Rhea v. United States, 50 P. 992, 6 Okl. 249. 21 Missouri, O. & G. Ry. Co. v. Collins, 47 Okl. 761, 150 P. 142. 22 Strickler v. Gitchel, 78 P. 94, 14 Okl. 523. 28 Folsom-Morris Coal Mining Co. v. Dillon (Okl.) 162 P. 696. 24 Baughman v. Penn, 6 P. 890, 33 Kan. 504; Metropolitan St. Ry. Co. v. McClure, 48 P. 566, 58 Kan. 109; Gallick v. Bordeaux, 78 P. 583, 31 Mont. 328; Archer v. United States, 60 P. 268, 9 Okl. 569; Chicago, R. I. & P. Ry. Co. v. Stibbs, 87 P. 293, 17 Okl. 97; Barker v. Kansas City, M. & O. Ry. Co., 129 P. 1151, 88 Kan. 767, 43 L. R. A. (N. S.) 1121. Where plaintiff relied on defendant's negligence in placing coal too near the track, an instruction assuming that plaintiff relied on the act of defendant in unloading the coal was properly refused. Missouri, O. & G. Ry. Co. v. Miller, 45 Okl. 173, 145 P. 367. Where there was evidence tending to show that a servant of a restaurant keeper was acting within the scope of his authority in assaulting a guest, an instruction that he went without the scope of his authority was properly re 25 See note 25 on following page. |