MISDIRECTION. An error made by a judge in charging the jury in a special case.
It is a rule, subject to the qualifications 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; 6 242; 2 Wils. 269; Williams v. Cheesebrough, 4 Conn. 356; or, if such misdirection ap pear in the bill of exceptions, or otherwise upon the record, a judgment 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 tend ency to mislead the jury, and it be uncertain. whether they would have found as they did if the instructions had been entirely correct, a new trial will be granted; West v. Ander son, 9 Conn. 107, 21 Am. Dec. 737. 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 ; Divver v. McLaughlin, 2 Wend. (N. Y.) 596, 20 Am. Dec. 655; and a misdirection in this respect will avoid the verdict. In England, under the Judicature Act of 1875, a new trial will not be granted on the ground of misdirection or of the improper admission or rejection of evidence, unless in the opinion of the court, to which the application is made, some sub stantial wrong has been thereby occasioned; and, if It appear that such wrong or mis carriage affects part only of the matter in controversy, the court may give final judg ment as to part thereog,. and direct a new trial as to the other part only ; 1 Ord. xxxix. v. 3 ; L. R. 10 Stat. 1875, 817.
Misdirection as to matters of fact will, in some cases, be sufficient to vitiate the pro ceedings. For example : misapprehension
of the judge as to material circumstance, and a direction to the jury accordingly ; 1 Const. So. C. 200; or instructing them upon facts which are purely hypothetical, where by they are misled ; Griffin v. Witherspoon, 8 Ga. 114 ; or an instruction which assumes a material fact to have been proved; Jonas v. Field, 83 Ala. 445, 3 South. 893; Deeds v. Ry. Co., 74 Ia. 154, 37 N. W. 124 ; submitting as a contested point what has been admitted ; Toby v. Reed, 9 Conn. 216 ; giving to the jury a peremptory direction to find in a given way, when there are facts in the case con ducive to a different conclusion ; Fitzgerald v. Alexander, 19 Wend. (N. Y.) 402; or where the evidence is so conflicting or rests so largely upon inference or circumstance, that a court could not rightfully sustain a demurrer to the evidence of the opposite party ; Tabler v. Coal Co., 87 Ala. 305, 6 South. 196. See Nelson v. Ry. Co., 73 Ia. 576, 35 N. W. 611; Harris v. 11. Co., 35 Fed. 116. 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 in struction is conformable to the law, the evi dence, and the justice of the case, it is rarely disturbed; Chiles v. Boothe, 3 Dana (Ky.) 566. But to warrant an unqualified direction to the jury in favor of a party, the evidence must either be undisputed or the prepon derance so decided that a verdict against it would be set aside ; Pullman Palace Car Co.
v. Laack, 143 Ill. 242, 32 N. E. 285, 18 L. R.
A. 215 ; Monroe v. Ins. Co., 52 Fed. 777, 3