an action triable by the court either with or without a jury, when only certain specific questions of fact are required to be answered by the jury, subject to the power of the court to accept or reject the answers in whole or in part, it is not error for the court to refuse to instruct the jury.376 The refusal of the trial court, in an action in equity, to give proper instructions to the jury is not ground for reversal, where the court finds upon all the issues in the case, and the evidence is sufficient to warrant the findings.377 The verdict of a jury in an equity case is merely advisory, and error in the instructions is immaterial.378 An instruction which is misleading and erroneous should be refused on that ground, and, upon appeal, it is not necessary to determine whether another reason given by the court for refusing it was valid or not.379 Instructions must be applicable, or must be based upon evidence. If not pertinent to the evidence in the case, they are properly refused. 380 Nor is it harmful error to refuse to instruct the jury as to what they already know in reference to their right to consider evidence which had been admitted before them without objection.381 And failure to give more explicit instructions is not error, unless further instructions have been requested.382 When, on account of the condition of the record, it is impossible to understand the evidence, it will be presumed that the court below properly refused the instructions requested.383 In the absence of any allegation of special damages the refusal of the court to give the following instruction was held to be erroneous: Pacific Ry. Co. v. Feldman, 152 Cal. 303, 92 Pac. 849; Matteson v. Southern Pacific Co., 6 Cal. App. 318, 92 Pac. 101. 376 Saint v. Guerrerio, 17 Colo. 448, 30 Pac. 335, 31 Am. St. Rep. 320. As to when court may properly refuse to submit question of fact to jury, see Janin v. London etc. Bank, 92 Cal. 14, 27 Am. St. Rep. 82, 27 Pac. 1100, 14 L. R. A. 320. 377 Riley v. Martinelli, 97 Cal. 575, 33 Am. St. Rep. 209, 32 Pac. 579, 21 L. R. A. 33; Hewlett v. Pilcher, 85 Cal. 545, 24 Pac. 781. 378 Schneider v. Brown, 85 Cal. 205, 24 Pac. 715; Sweetser v. Dobbins, 65 Cal. 531, 4 Pac. 540. 379 Low v. Warden, 77 Cal. 94, 19 Pac. 235. See Fox v. Stockton etc. Harvester Works, 83 Cal. 333, 23 Pac. 510. 380 Brownell V. McCormick, 7 Mont. 12, 14 Pac. 651; Hill v. Corcoran, 15 Colo. 270, 25 Pac. 171; Dozenback v. Raymer, 13 Colo. 451, 22 Pac. 787; Razzo v. Varni, 81 Cal. 289, 22 Pac. 848; Shepherd v. Jones, 71 Cal. 223, 16 Pac. 711; Woo Dan v. Seattle etc. Ry. Co., 5 Wash. 466, 32 Pac. 103. 381 Chalmers v. Chalmers, 81 Cal. 81, 22 Pac. 395. 382 Rice v. Whitmore, 74 Cal. 619, 5 Am. St. Rep. 479, 16 Pac. 501. 383 Fugate v. Smith, 4 Colo. App. 201, 35 Pac. 283. 9 384 "The plaintiff having neither pleaded nor proved any special damages resulting from the alleged frightening of the horses, he can recover nothing from that cause. When proper instructions are refused, and the record on appeal shows affirmatively that there were no other such instructions given, the judgment must be reversed.385 § 1241. Instructions-How construed.-Instructions are to be read and considered in the light of the pleadings and evidence in the case. 386 They are to be read and considered as a whole;387 and the fact that when taken separately some of them may fail to enunciate in precise terms, and with legal accuracy, propositions of law, does not necessarily render them erroneous. It is sufficient if all the instructions taken together, and not being inconsistent with each other or confusing, shall give to the jury a fair and just notion of the law upon the point discussed.388 § 1242. The same-Modification or amendment of.-It is not error for the court to modify instructions asked by counsel before giving them.389 If defendant is not entitled to an instruction as submitted by him, a modification thereof which does not add anything of prejudice to his case is proper, though it takes away the whole effect of the instruction as requested.390 It is the duty of the court to make any and all corrections of the instructions, when reduced to writing, necessary to their validity.391 The 884 Larsen v. Oregon Navigation Co., 19 Or. 240, 23 Pac. 974. As to erroneous refusal of the court to charge the jury as to the legal effect of the complaint as an exhibit, see Tingley v. Fairhaven Land Co., 9 Wash. 34, 36 Pac. 1098. 385 Stanton v. French, 83 Cal. 194, 23 Pac. 355. 386 Elder v. Schumacher, 18 Colo. 433, 33 Pac. 175. 387 Hanscom v. Drullard, 79 Cal. 234, 21 Pac. 736; Cousins v. Partridge, 79 Cal. 224, 21 Pac. 745; Monaghan v. Pacific Rolling Mill Co., 81 Cal. 190, 22 Pac. 590; Bradbury v. Butler, 1 Colo. App. 430, 29 Pac. 463; Coleman v. Davis, 13 Colo. 98, 21 Pac. 1018; People v. Fehrenbach, 102 Cal. 394, 36 Pac. 678. 388 Stephenson v. Southern Pacific Co., 102 Cal. 143, 34 Pac. 618, 36 Pac. 407; Seattle Gas etc. Co. v. Seattle, 6 Wash. 101, 32 Pac. 1058; Duggan v. Pacific Boom Co., 6 Wash. 593, 36 Am. St. Rep. 182, 34 Pac. 157; Hamer v. First Nat. Bank, 9 Utah, 215, 33 Pac. 941; Northern Pacific R. R. Co. v. Hess, 2 Wash. 383, 26 Pac. 866; Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 Pac. 847; Fitschen v. Thomas, 9 Mont. 52, 22 Pac. 450. 389 King v. Davis, 34 Cal. 100. See Knapp v. King, 6 Or. 243. 390 Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 98 Am. St. Rep. 85, 74 Pac. 15, 63 L. R. A. 238. 391 Rice v. Goodridge, 9 Colo. 237, 11 Pac. 91; Cook v. Los Angeles etc. El. Co., 134 Cal. 279, 66 Pac. 306. trial court has the right to amend an imperfect instruction, and its action in making the amendment is not error, if, when given as amended, the instruction states the law correctly.302 One party cannot complain that an instruction submitted by him is modified so as to include the theory of the other party also.393 Where the only objection to an instruction is that it is too general in its terms, the proper practice is to move to make it more specific,394 and no such motion or request being made, a slight omission is not reversible error, 395 and the instructions then need not necessarily cover all the phases of the case.3 396 § 1243. The same-Presumptions.-When the record is silent as to what instructions the court gave the jury, the legal intendment is that they were properly instructed, and he who alleges error must make it affirmatively appear from the record.397 So where the jury are correctly instructed as to the applicability of the evidence before them, it is a presumption of law that they exercised their jurisdiction soundly 398 Where conflicting charges are given, one of which is erroneous, it is to be presumed that the jury may have followed that which is erroneous. 399 § 1244. The same-Duty of jury to follow. The instructions of the court are the law of the case, so far as the jurors are concerned, and they are bound to follow them, whether they deem them correct or not.400 The jury are bound to accept all the instructions of the court as correct,101 whether they consider such instructions correct or whether the instructions are in fact correct;402 and they can no more be permitted to look beyond the instructions of the court to ascertain the law than they would be allowed to go outside of the evidence to find the facts of the 302 People v. Hall, 94 Cal. 595, 30 Pac. 7. 393 Bingham v. Lipman, Wolfe & Co., 40 Or. 363, 67 Pac. 98. 394 Enoch v. Spokane etc. Ry. Co., 6 Wash. 393, 33 Pac. 966. 395 Little Dorrit Gold Min. Co. v. Arapahoe etc. Co., 30 Colo. 431, 71 Pac. 389; Chicago etc. Co. v. Connally, 15 Okla. 45, 78 Pac. 18. 396 Gillis v. Clarke Fork etc. Co., 32 Mont. 320, 80 Pac. 370. 397 Coffin v. Taylor, 16 Or. 375, 18 Pac. 638. 398 People v. Rogers, 71 Cal. 565, 12 Pac. 679. 399 People v. Hancock, 7 Utah, 180, 25 Pac. 1093; People v. Berlin, 10 Utah, 39, 36 Pac. 199. 400 Lind v. Closs, 88 Cal. 6, 25 Pac. 972; Loveland v. Gardner, 79 Cal. 317, 21 Pac. 766, 4 L. R. A. 395. 401 Sappenfield v. Main St. R. R. Co., 91 Cal. 48, 27 Pac. 590. 402 Bentley v. Brossard, 33 Utah, 396, 94 Pac. 736. 403 case. But if a jury disregards an erroneous instruction of the court, their verdict is not against law.404 1245. The same-Error, when cured.-Error in refusing to give proper instructions is cured if the court subsequently give an instruction covering the same ground.105 So where objectionable features in instructions are covered by other paragraphs stating the law clearly and correctly, the error is cured.406 But the giving of erroneous instructions is not cured by the giving of others which are inconsistent therewith, correctly stating the law 407 § 1246. Conduct of the jury.-After hearing the charge, the jury may either decide in court or retire for deliberation.108 Should they retire for deliberation, the officer of the court, having first been sworn not to communicate nor allow others to communicate with them, conducts them to the jury-room, where they deliberate upon and make up their verdict. There is no provision in the code requiring the court to administer a special oath to the officer taking charge of the jury upon its retirement for deliberation, and it is in the discretion of the court to administer a special oath or not. The code contemplates that the official oath of the officer is sufficient.409 They may take with them all papers which have been received as evidence in the cause, except depositions, or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; and they may also take with them notes of the testimony or other proceedings of the trial taken by themselves, or any of them, but none taken by any other persons. Where papers have been read in evidence, it is discretionary with the court whether to allow the jury to take them or not.411 It is proper to refuse to let them 410 403 Emerson v. Santa Clara County, 40 Cal. 543. 404 O'Neill v. Thomas Day Co., 152 Cal. 357, 92 Pac. 856. 405 Manning v. Dallas, 73 Cal. 420, 15 Pac. 34. 406 Cameron v. Union Trunk Line, 10 Wash. 507, 39 Pac. 128. 407 Sappenfield v. Main St. R. R. Co., 91 Cal. 48, 27 Pac. 590; Miller v. Vermurie, 7 Wash. 386, 34 Pac. 1108, 35 Pac. 600; Melone v. Sierra Ry. Co., 151 Cal. 113, 91 Pac. 522; Fogarty V. Southern Pacific Co., 151 Cal. 785, 91 Pac. 650. 408 Cal. Code Civ. Proc., § 610. 409 Boreham v. Byrne, 83 Cal. 23, 23 Pac. 212. 410 Cal Code Civ. Proc., § 612; Howland v. Willetts, 9 N. Y. 170; Porter v. Mount, 45 Barb. 422. See McLean v. Crow, 88 Cal. 644, 26 Pac. 596; Cockrill v. Hall, 76 Cal. 192, 18 Pac. 318. 411 Powley v. Swensen, 146 Cal. 471, 80 Pac. 722. 415 414 take with them a map of the location of an accident which was used by witnesses in giving testimony, but which was not admitted in evidence.12 The pleadings should not be sent out with the jury;13 and it is held to be bad practice to permit a jury to take a written charge to the jury-room. They may come into court for information upon the testimony, in case of a disagreement between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the parties or counsel. If the court reads to the jury all the instructions for which they ask, it is sufficient. All the instructions need not be read again.416 The judge may keep the jury together as long as in his judgment there is any reasonable prospect of their being able to agree. But he has no right to threaten or intimidate them in order to affect their deliberations. 417 A new trial will not be granted because the judge tells them, through the sheriff, that if they do not agree in five minutes they must remain in the juryroom all night.18 It is the province of the jury to determine from the evidence the issues of fact, and their decision is final.11 Having determined upon their verdict, they are brought into court by the officer, and through their foreman they declare the same. If it be a sealed verdict, it is read by the clerk, so that parties may be distinctly informed of its purport.420 Jurors are bound upon their oaths and consciences to act intelligently, not blindly.421 The weight of the evidence and the credibility of the witnesses are matters of which the jury are the proper judges.* Where the evidence leaves a question of fact in dispute, doubt, 412 Carman v. Montana Cent. Ry. Co., 32 Mont. 137, 79 Pac. 690. 413 Spaulding v. Saltiel, 18 Colo. 86, 31 Pac. 486. 414 Smith v. Lownsdale, 6 Or. 78. 415 Cal. Code Civ. Proc., § 614. 416 Russell v. Dennison, 45 Cal. 338. 417 Green v. Telfair, 11 How. Pr. 260. 418 People v. Hughes, 29 Cal. 258. 419 McCauley v. Weller, 12 Cal. 500. 420 Blum v. Pate, 20 Cal. 70. 421 Knight v. Fisher, 15 Colo. 176, 25 Pac. 78. 422 Simonton v. Rohm, 14 Colo. 51, P. P. F. Vol. I-51 419 422 23 Pac. 86; Morey v. Harvey, 18 Colo. 40, 31 Pac. 719; Stone v. Crow, 2 S. Dak. 525, 51 N. W. 335; Colorado etc. Ry. Co. v. O'Brien, 16 Colo. 219, 27 Pac. 701; State v. Daly, 16 Or. 240, 18 Pac. 357; Tibballs v. Mt. Olympus Water Co., 10 Wash. 329, 38 Pac. 1120; Halley v. Folsom, 1 N. Dak. 325, 48 N. W. 219; Oppenheimer v. Denver etc. R. R. Co., 9 Colo. 320, 12 Pac. 217; Patterson v. Hayden, 17 Or. 238, 11 Am. St. Rep. 822, 21 Pac. 129, 3 L. R. A. 529. Compare Denver Tramway Co. v. Owens, 20 Colo. 107, 36 Pac. 848. |