The opinion
Opinion
Per Curiam. Upon a petition for a rehearing appellee contends that the view by the jury in this case was practically by consent, and that we have failed to give due consideration to Culbertson & Blair Provision Co. v. City of Chicago, 111 Ill. 651 , where in a suit for damages to real estate an instruction was approved which told the jury that as the parties had by mutual consent allowed the jury to view the premises, they had the right in finding their verdict to take into account such facts as they learned by viewing the property. Four Illinois cases were there cited as supporting said instruction. Each of these was a condemnation case. In three of them the subject of a view by mutual consent was not mentioned or involved. In one of them the view was at the request of both parties, but the fact that both parties requested the view was not made the basis of the decision nor the subject of comment. The decision in Culbertson & Blair Provision Co. v. City of Chicago, supra, was referred to with approval in People v. General Electric Co., 172 Ill. 129, 145 , but that was not a jury trial but an information in equity to enjoin a railway company from doing certain things, and the parties agreed that the trial judge might inspect the premises involved, and he did so. Appellee also cites City of Chicago v. Spoor, 190 Ill. 340, 366 , as supporting and approving the case of Culbertson & Blair Provision Co. v. City of Chicago, supra, but that language was used in a dissenting opinion and is therefore not authority. The holding in Culbertson & Blair Provision Co. v. City of Chicago, supra, that a view by a jury in a common law action by consent of parties is evidence, has not been approved in a jury case, except by what was said in Springer v. City of Chicago, 135 Ill. 552 , an action for damages to real estate, where such view by the jury was held to be “real evidence.” This, however, was afterwards departed from. In Vane v. City of Evanston, 150 Ill. 616 , a special assessment case, it was held that the object of a view at common law is to enable the jury to understand and apply the evidence. The court there stated that under the statute in condemnation cases, the information received by the jury by their personal view is to be considered as evidence, and then said: “Such was not the rule at common law, the purpose of the view being, as stated, simply to enable the jury to understand the issue, and apply the evidence. They were not authorized to consider any fact bearing upon the merits of the controversy derived from such view. To allow that to be done would be wholly inconsistent with the principles controlling in common law trials, and introduce great uncertainty in the trial of all common law causes where a personal view was permitted. Parties never would know upon what the jury based their finding, and the court would be in no position to control the evidence upon which it is predicated, or determine whether the verdict was based upon competent or upon the consideration of incompetent and illegal matters not admissible under the issues.” In Osgood v. City of Chicago, 154 Ill. 194 , a suit for damages.to real estate, it was held that the Vane case modified the Springer case as to the effect to be given by the jury to their view of the premises. In Rich v. City of Chicago, 187 Ill. 396 , a special assessment proceeding, the jury were instructed that their view of the premises was evidence for them in making up their verdict. It was held that this instruction violated the rule of evidence long established and that it was error to give it. In Metropolitan West Side E. R. R. Co. v. Goll, 100 Ill. App. 323 , City of Chicago v. McShane, 102 Ill. App. 239 , and by this court in Petzel v. C. & N. W. Ry. Co., 103 Ill. App. 210 , each of these being, a suit for damages to real estate, it was held that the view by the jury was not to be treated as evidence upon which to base a verdict, but that its only purpose was to enable the jury to better understand and apply the evidence. We are therefore of opinion that the holding in Culbertson & Blair Provision Co. v. City of Chicago, supra, that a view by mutual consent in a common law case becomes evidence, must be regarded as abandoned.
Much inconvenience would result from applying the proposed rule to an ordinary action at law. where one party in the presence of .the jury, asks that they be permitted to view the premises or the thing about which the parties are litigating. It is obvious that, if the opposite party should object, he would subject himself to the inference in the minds of the jury that a view would result unfavorably to his cause, and that he was seeking to prevent the jury from ascertaining the truth. In many cases he would be practically forced to consent to a view. The result would be that in practically every common law case where there is a corpus to be viewed, the view would be by consent and would become evidence, and under the 18th instruction given for appellee in the case now before us, the jury would have a right to base a verdict upon their own view differing from the weight of the testimony given in open court, and the courts of appeal would thereby be deprived of the power to review the evidence and to determine whether the verdict ought to stand upon the facts. No such result was intended to follow a common law view.
If, however, the rule announced in Culbertson & Blair Provision Co. v. City of Chicago, supra, that a view by consent in a common law case is evidence, be considered as still adhered to, it certainly cannot be claimed that it is evidence in any stronger sense than such a view would be under the Eminent Domain Act. Upon that question there has been a conflict of authority. Such an instruction in a condemnation cage is practically approved in C. & I. R. R. Co. v. Hopkins, 90 Ill. 316 , McReynolds v. B. & O. R. R. Co., 106 Ill. 152 , and to some extent in Chicago General Ry. Co. v. Murray, 174 Ill. 259 , and support for the instruction is found in Kiernan v. C. S. F. & C. Ry. Co., 123 Ill. 188 , and Guyer v. D. R. I. & N. W. Ry. Co., 196 Ill. 370 , condemnation cases. On the other hand in A. T. & S. F. R. R. Co. v. Schneider, 127 Ill. 144 , a condemnation case, the court reviews the cases up to that time and says that while the view is in the nature of evidence and to be considered by the jury in connection with all the' other evidence, and that an assessment will not be set aside merely because it may differ in amount from the preponderance of the evidence appearing in the record, yet it has never been held that all the evidence may be ignored and the amount fixed directly contrary thereto. The language of the court in the Kiernan case was qualified. It was there held that the verdict was contrary to the proofs and that a new trial should have been awarded. In Peoria Gas Light Co. v. Peoria Terminal Ry. Co., 146 Ill. 372 , a condemnation case, the court instructed the jury that “if, after full consideration of all the testimony in the case in • connection with your own inspection of the premises, you conclude that your own inspection of the premises is a more reliable basis for the estimate and assessment of compensation and damages, then you have a right under the law, so to do, but you should not arbitrarily and without reason reject any of the testimony.” It was held that this instruction clearly authorized the jury to base their verdict solely on their own inspection of the premises, if they were of the opinion that such inspection furnished a more reliable basis for an assessment than did the evidence of the witnesses, and gave the jury a clear intimation that if it was their opinion that their inspection of the premises furnished a more reliable basis for a verdict, that conclusion supplied a sufficient reason for wholly disregarding the testimony of the witnesses. It was held that this was not the law, and that the giving of this instruction was erroneous, and that the verdict must be supported by the evidence and can in no case rest solely upon the personal examination of the premises by the jury, however well convinced they may be that the examination furnishes a more reliable basis than the testimony of the witnesses for an assessment of the damages. The Schneider case was there treated as qualifying the Kiernan case. In this seeming conflict of authority we regard the later decision in Chicago & State Line Ry. Co. v. Mines, 221 Ill. 448 , as controlling. The court there said “Appellees’ first instruction was misleading, in that it was apt to cause the jury to conclude that they might disregard entirely the evidence heard in open court and fix the damages upon their view of the premises alone. Such is not the law. The evidence heard in open court must be considered by the jury. (Atchison, Topeka & Santa Fe Railroad Co. v. Schneider, 127 Ill. 144 ; Peoria Gas Light Co. v. Peoria Terminal Railway Co., 146 id. 372). The case of Guyer v. Davenport, Rock Island and Northwestern Railway Co., 196 Ill. 370 , relied upon by appellee, does not go far. enough in this regard to sustain their position.” The abstract filed in the Mines case shows that the instruction there discussed read as follows: “The court instructs you gentlemen of the jury, as a matter of law, that your personal view of the premises is evidence, properly to he taken into consideration in making up your verdict, but unless you believe from the whole evidence in the case that you have from such personal examination of the premises arrived at a more accurate judgment and determination as to the value of the premises sought to be taken and of the amount of damages to property not taken, than is shown by the evidence in open court you should not attempt to fix such value and damages from your view of the premises alone without regard to the evidence produced in open court, but you should duly consider such evidence and weight of the testimony of the witnesses as and in the manner set forth in other instructions.” The case was reversed for error in giving that and one other instruction. Under this authority it seems to us plain that it was error to give the 18th instruction requested by appellee, even if this case were to be governed by the rule in condemnation cases. The petition for a rehearing is therefore denied.