The opinion
Weaver, J.
(dissenting). — I am unable to agree that the trial court erred in giving the instruction discussed in the third paragraph of the foregoing opinion. On the contrary, when construed as it should be in connection with the entire charge of the court, it announces a rule of law which is both sound and wholesome. The record shows that the defense relied for the most part on evidence of an expert or opinion character that the marks said to have been found upon the body of the dead animal did not indicate it had been struck by lightning. In different paragraphs of the charge the court expressly warned the jury that the burden was upon the plaintiff to establish his claim by a preponderance of the evidence, and in the same paragraph, and in connection with the very language criticised by the majority, the court told the jury that its verdict must be found from, the evidence offered and submitted to the jury. This was repeated so often and so clearly that to say confusion or misunderstanding could have arisen in the minds of the jurors concerning this elementary rule is an impeachment of their sanity. But the testimony was wholly of a circumstantial character. No one saw the animal killed. It was the claim of the plaintiff that the marks upon the body indicated death by lightning. This the defendant denied, and offered in evidence the opinion of the witnesses *11 based upon their experience and observation, to the effect that such marks did not indicate injury by lightning. It was then proper for the court to instruct upon the subject of expert evidence, and in connection therewith I think the statement in such instruction was not erroneous. Jurors are not required to accept the mere opinion of any witness, even though undisputed. This is especially true where the subject-matter of the opinion has reference to a fact or condition which is as likely to have fallen within the observation of the average juror as of the witness who assumes to speak from expert knowledge. In such cases it has frequently been held that the jury is entitled to exercise its own judgment upon the question so presented, even though the expert testimony is uneontradieted. Familiarity with the effect of .lightning strokes upon the bodies of animals is not a thing known only to students of science or insurance agents and adjusters. It is a matter open to the observation and experience of the average man, and especially of the average farmer, everywhere. Jurors to whom such a question is submitted may and must exercise their own judgments in determining whether to accept an expert opinion as correct. The judgment which they are thus to exercise is the quality of mind which enables them to consider and compare and discriminate with respect to the values and relations of things and to reach just conclusions from given states of facts. The facts upon which they are to thus pass as jurors are to be found in the evidence alone, but the judgment which they are to exercise in rendering their verdict is a judgment enlightened not alone by the evidence or by-matters of knowledge common to all men, - but also by the matters common to the knowledge and experience of the jurors themselves. Either I misread the authorities, or the majority is wrong in saying the “authorities are all one way” in holding the rule of the instruction erroneous. For example:
Chief Justice Shaw has said: “Juries would be very little fit for the duties of the high and responsible office to which they are called, especially to make an appraisement *12 which depends upon knowledge and experience, if they might not avail themselves of these powers of their minds, when they are most necessary to the performance of their duties. ’ ’ Patterson v. Boston, 20 Pick. (Mass.) 166.
On another occasion the same distinguished jurist used these words: “The jury may properly exercise their own judgment and apply their own knowledge and experience in regard to the general subject of inquiry. In the present ease the jury was not bound by the opinion of the witness.” Murdock v. Sumner, 22 Pick. (Mass.) 156.
Citing these precedents approvingly, the Supreme Court of the United States has said: “It was the province of the jury to weigh the testimony of the attorneys as to the value of the services, by reference to their nature, the time occupied in their performance, and other attending circumstances, and by applying to it,their own experience and knowledge of the character of such services.” Head v. Hargrave, 105 U. S. 45 ( 26 L. Ed. 1028 ).
In Lafayette v. Olsen, 108 Fed. 340 ( 47 C. C. A. 367 , 54 L. R. 33), it was held that, in considering the opinion of an expert concerning a defective plank which was the alleged causé of injury, it was competent for the jurors to make use of their own knowledge and. experience. A similar instruction was upheld in Beveridge v. Lewis, 137 Cal. 628 ( 67 Pac. 1040 , 70 Pac. 1083 , 59 L. R. A. 581, 92 Am. St. Rep. 188 ).
Mr. Elliott, in his work on Evidence 1046, states the rule thus: “The effect of expert evidence or opinion rests entirely with the jury, and the jurors may apply their men experience and knowledge and exercise their own independent judgment upon the facts in evidence in reaching their conclusion.” Bearing upon the same proposition, see Manning v. Railroad Co., 166 Mass. 230 ( 44 N. E. 135 ); Green v. Chicago, 97 Ill. 370 ; Stevens v. State, 3 Ark. 66 ; Houston v. State, 13 Ark. 66 ; McGarrahan v. Railroad Co., 171 Mass. 211 ( 50 N. E. 610 ); Hayes v. Wagner, 220 Ill. 256 ( 77 N. E. 211 ); Wills v. Lance, 28 Or. 371 ( 43 Pac. 384 , 487) ; Haight v. Vallet, 89 Cal. *13 245 ( 26 Pac. 897 , 23 Am. St. Rep. 465 ); Nybach v. Lumber Co., 48 C. C. A. 632 ( 109 Fed. 732 ).
The United States court, after recognizing the general proposition that jurors must find their verdict from the evidence alone and may not arbitrarily discredit an unimpeached witness, adds that “no such obligation attaches to witnesses who testify merely to their own opinion, and the jury may deal with it as they please, giving credence or not as their oivn experience or general knowledge may dictate.” The Conqueror, 166 U. S. 131 (17 Sup. Ct. 518, 41 L. Ed. 937 ). To the same effect, see Buckalew v. Railroad Co., 107 Mo. App. 575 ( 81 S. W. 1176 ); Railroad Co. v. Baltimore, 98 Md. 535 ( 56 Atl. 790 ); Parks v. Boston, 15 Pick. (Mass.) 209; Stevens v. State, 3 Ark. 66 ; McGarrahan v. Railroad Co., 171 Mass. 211 ( 50 N. E. 610 ).
In the last-cited ease the court says that the jury take with them to the jury room “their knowledge and experience of affairs, and are not only at liberty to use the same in drawing conclusions from the evidence, but ought to make use thereof. This rule certainly has the saving grace of common sense. ” Honest jurors ought not to be asked or instructed under any condition of the record to treat or give effect to the opinion of any witness as the truth when they know from their own knowledge and experience it is not true. If, for instance, a witness testifies without contradiction tha,t a locomotive of given pattern and weight running at a stated speed on a level track cannot be brought to a stop within less than 1,000 feet, and there is upon the jury one or more practical locomotive engineers who know from actual experiment that the stop may be made in 600 feet, it would be a gross parody on the forms of justice to hold that such jurors, in reaching their conclusions upon the merits of the ease, may not consult their own judgment, as enlightened by their own experience, and in reliance thereon reject the testimony which they know to be false or mistaken, even though not contradicted on the trial, The instruction which is condemned by the majority, *14 when, fairly read in connection with the record and in charge as a whole, is well supported by the authorities to which I have referred. The rule for which I contend does not operate as the majority seems to think to make the jurors witnesses in the case or to make evidence of particular facts coming within their knowledge and experience. It does no more than to say that, if the intelligence and judgment of the jurors have been enlightened by their own experience and observation,, they are not required to lay aside these qualifications in performing the duty for which they are impaneled. The rule is not only reasonable in itself, but it would seem unavoidable unless we are to reduce jury trials and the matter of jury instructions to an absurdity. What the jurors have seen, known, and experienced in their own lives and observations concerning the cause and effect of given or stated conditions is an inseparable part of their being. It is that which qualifies them to exercise judgment, and affords the only just basis for confidence in the correctness and integrity of the opinion or conclusion registered by their verdict. The verdict is none the less based upon the evidence and the evidence alone because in reaching it jurors have brought that evidence to the test thus indicated.
While I regret the conclusion announced in the majority opinion, I am glad to believe that it cannot result in widespread mischief. For however solemnly we may declare the rule so approved, and however faithfully the trial courts may go through’the perfunctory routine of repeating it in their instructions, juries will continue just the same to test the truth aiid values of expert testimony concerning matters which are not of an abstruse or scientific character by the touchstone of their own experience and observation.
I think the judgment of the trial court should be affirmed.