MISDIRECTION. In Practice. An error made by a judge in charging the jury in a special case.
2. It is a rule, subject to the qualifica tions hereafter stated, that when the judge at the trial misdirects the jury on matters of law material to the issue, whatever may be the nature of the case, the verdict will be set aside, and a new trial granted, 6 Mod. 242 ; 2 Salk. 649 ; 2 Wils. 269 ; 4 Conn. 356 ; or, jf such misdirection appear in the bill of ex ceptions, or otherwise upon the record, ajudg ment founded on a verdict thus obtained will be reversed. And although the charge of the court be not positively erroneous, yet, if it have a tendency to mislead the jury, and it be uncertain whether they would have found as they did if the instructions had been en tirely correct, a new trial will be granted. 11 Wend. N. Y. 83 ; 6 Cow. N. Y. 682 ., 9 Humphr. Tenn. 411 ; 9 Conn. 107. When the issue consists of a mixed question of law and fact, and there is a conceded state of facts, the rest is a question for the court, 2 Wend. N. Y. 596 ; and a misdirection in this respect will avoid the verdict.
3. Misdirection as to matters of fact will, in some cases, be saficient to vitiate the pro ceedings. For example : misapprehension of the judge as to a material circumstance, and a direction to the jury accordingly, 1 Const. So. C. 200 ; or instructing them upon facts which are purely hypothetical, whereby they are misled, 8 Ga. 114 ; submitting as a con tested point what has been admitted, 9 Conn. 216 ; giving to the jury a peremptory direc tion to find in a given way, when there are facts in the case conducing to a conclu sion. 7 J. J. Marsh. Ky. 410 ; 3 Wend. N. Y. 102; 19 id. 402; 12 Mass. 22; 5 IIumphr.
Tenn. 476. There are, however, many cases in which the court may instruct the jury, upon the whole evidence, to find for one or the other party ; and when a verdict formed under such instruction is conformable to the law, the evi dence, and the justice of the case, it is rarely disturbed. 3 Dan. Ky. 566. But to warrant an unqualified direction to the jury in favor of a party, the evidence must either be undisputed or the preponderance so de cided that a verdict against it would be set aside. 16 Wend. N. Y. 663. When the court delivers its opinion to the jury on a matter of fact, it should be as opinion, and not as direc tion. 12 Johns. N. Y. 513. But it is, in general, allowed a very liberal discretion in this regard. 1 M'Clel. & Y. Exch. 286. Where the question is one of mere fact, no expressions of the judge, however strong or erroneous, will amount to a misdirection, pro vided the question is fairly presented to the jury and left with them for their decision. 5 Scott, 28 ; 4 Moore & S. 295 ; 19 Wend. N. Y. 186 ; 10 Pick. Mass. 252.
4. Unless the misdirection be excepted to, the party by his silence will be deemed to have waived it. 10 Mo. 515 ; 2 Pick. Mass. 145. But see 4 Wend. N. Y. 514; 2 Barb. N. Y. 420.
As to its effects, the misdirection must be calculated to do injustice ; for if it be en tirely certain that justice has been done, and that a re-hearing would produce the same re sult, or if the amount in dispute be very tri fling, so that the injury is scarcely appreci able, a new trial will not be granted. 2 Caines, N. Y. 85 ; 7 Me. 442 ; 10 Ga. 429 ; 3 Graham & W. New Tr. 705-873 ; NEW