* Corpus Juris-Cyc. References: Trial, 38 Cyc, p. 1516, n. 57; p. 1518, n. 69; p. 1778, n. 73; p. 1779, n. 75, 76; p. 1785, n. 90. Appellee, Rawlings, brought this action in the circuit court of Lauderdale county against appellant, Hemming, to recover damages for an injury received by appellee through the alleged negligence of appellant while appellee was engaged about his duties as an employee in appellant's wagon factory. Appellee recovered judgment in the sum of five thousand dollars from which judgment appellant prosecutes this appeal.
The giving of two instructions for appellee is assigned as error. One of the instructions complained of is in the following language:
"The court charges the jury for the plaintiff, you are the sole and only judges of the weight and worth of the testimony of each and every witness called to testify, and that there is no rule or form of law regulating or limiting this right and power, other than the duty of the jury to honestly and fairly consider all of the testimony offered in the case, and from such testimony determine the truth concerning the issues involved in this case." *Page 648
It is argued that the following clause in the instruction made the instruction erroneous and misleading to the jury: "And there is no rule or form of law regulating or limiting this right of the jury." Appellant's position would be sound except for the qualifying clause with which the instruction concludes, viz., "other than the duty of the jury to honestly and fairly consider all of the testimony offered in the case, and from such testimony determine the truth concerning the issues involved in this case." We think the clause so modified the clause in question that the instruction, as given, embodied the correct principle of law. It is the law that the jury are the sole judges of the credibility of witnesses testifying in a case and the weight to be given this evidence, and there is no law regulating or limiting this authority of the jury, except that they must be guided by the evidence. That is what the instruction told the jury. Therefore there was no error in giving the instruction.
The other instruction complained of is in this language:
"The court charges the jury for the plaintiff that if the jury believe that any witness testifying in this case has willfully, intentionally, and corruptly sworn falsely to any material fact in the case, that you may disregard his testimony altogether the same as if he had not testified at all."
The criticism made by appellant of this instruction is that the jury were not told that they must believe from the evidence that if any witness had willfully and corruptly sworn falsely to any material fact in the case they might disregard his testimony altogether; that therefore the jury were left no guide; they were authorized to go out into the field of speculation to determine the question. The appellee conceded that the instruction was erroneous for the reason urged by appellant, but contends that the error was harmless — that the instruction was not misleading to the jury.
Every other instruction given, both for appellant and appellee, told the jury that in determining the issues of *Page 649 fact in the case they should be controlled by the evidence. This instruction, and the other instruction, first above copied, of which appellant complains, are on the same subject. They are both addressed to the authority and duty of the jury with reference to passing on the weight of the testimony. In determining the weight of testimony, the jury may pass on the credibility of the witnesses. Taking the two instructions together, as should be done, they told the jury, in effect, that, in passing on the credibility of witnesses and the weight that should be given their evidence, they should be guided by the evidence alone. In this day of reading and enlightenment, it would be hard to believe that any juror could be found who thought, under the law, he was authorized to return a verdict based on any consideration except the evidence in the case. Although this instruction was erroneous, we are of opinion that, taking the completed record, including all the instructions given for both appellant and appellee, and construing them together as one instruction, which this court has often held should be done, the error in this particular instruction was cured and therefore harmless to appellant.
Affirmed.