dissenting. My confidence in the fairness and good judgment of the learned judge before whom this cause was tried is such that I concur with the court in its disposition of the first branch of this case, although I confess that there is much in the matter complained of which it is difficult to excuse or overlook even in this court. I must dissent, however, from the views expressed by the court in relation to the errors assigned in the exclusion of legal evidence and the admission of ellegal evidence. It is doubtless true, as declared by the court, that such errors are not in themselves sufficient ground for reversal. But the court further says: “It must either actually appear, or the presumption must be strong, that the party seeking a reversal suffered, or was injured or prejudiced, by reason of the error complained of, in some substantial interest or right involved in the issue raised or covered by the pleadings in the action.” “The true test is, ignoring the alleged illegal evidence admitted, and admitting the alleged legal evidence excluded, would there still be good ground for the verdict'as rendered, or could the jury have fairly arrived at not only a different verdict, but one in favor, in whole or in part, of the party seeking reversal?”
The rule thus laid down is open to at least two serious objections. In the first place, it is indefinite and uncertain. The test proposed in the last clause, “Could the'jury have fairly arrived at a different verdict?” is far more restrictive than that *18proposed in the previous clause, “Would there still be good ground for the verdict as rendered?” The word “fairly” I take to mean “reasonably, ” and I think-it would be properly held that if, under the given circumstances, the jury could not reasonably have found a different verdict, a new trial ought not to be granted; because, under such circumstances, an adverse verdict would be at once set aside by the court, if, indeed, the court, in a case presenting such features, would consider it necessary to submit the matter to the jury at all. But the test proposed in the previous clause is an essentially different one. Under the given circumstances, there might still, in the judgment of this court, “be good ground for the verdict as rendered;” but that is not the question. The very terms of the proposition imply that the question before the jury was one of doubt; and in such cases the jury are the sole judges of the weight to be given to the evidence. The court has no right to speculate upon its probable effect in a doubtful case.
Thus we see that the rule as laid down by the court affords no certain ground to stand upon. It proposes a double test, the terms of which are inconsistent. But, again, the whole effect of the rule, as thus declared, is to throw the burden upon the wrong party. The court say it must actually appear, or the presumption must be strong, that the applicant was prejudiced by the error complained of. It is true that error will never be presumed, but I think the rule is well established, by the clear weight of modern authority, that where error in the admission and especially in the exclusion of evidence in the course of a jury trial is shown, prejudice to the party aggrieved will be presumed, and that it lies with the respondent, in such case, to show clearly that no injury resulted from the error. Jackson v. Feather River W. Co. 14 Cal. 18; Starbird v. Barrows, 43 N. Y. 200; Baird v. Gellette, 47 N. Y. 186; Foote v. Beecher, 78 N. Y. 155; Campau v. Traub, 27 Mich. 215; Coppage v. Com. 3 Bush. 532.
It is unnecessary to consider here the question whether the rule would be different in cases tried by the court without a jury. In the case of Thorndike v. City of Boston, 1 Metc 242, *19249, Chief Justice Shaw, after a careful and instructive consideration of the master, deduces the following rule: “Where evidence has been improperly received or rejected, and the verdict is found against the party taking the exception, and a motion for a new trial is made on that ground, such motion will not be granted if the court can see plainly from the whole evidence that, independently of the evidence received or rejected, the evidence in support of the verdict sq decidedly preponderates that a verdict the other way would be set aside as against evidence. ” I have italicized certain words in the above citation for the purpose of calling attention to what would seem an inadvertence in the statement of the rule. Surely, that learned judge did not intend to declare that the preponderance of the evidence was to be determined independently of evidence improperly rejected; for, obviously, such evidence, if admitted, might have overwhelmingly turned the scale. It should be remarked that the error assigned in that case was upon the admission and not the rejection of evidence, which may account for the inadvertence. Doubtless we may substitute for the words in italics the following words employed by Judge Shaw earlier in the same opinion, viz., “rejecting they incompetent evidence which had been admitted, and adding the competent evidence which had been rejected.” Thus modified, it seems to me, the rule as stated by the supreme court of Massachusetts is the log ical, consistent, and safe one.
It is not essential to my present purpose, nor would it be profitable, to enter into a consideration of the various items of evidence, upon the exclusion or admission of which errors were assigned, since the court have said it was unnecessary to do so, and have declared that “even admitting them (the errors) all to be well assigned, it is apparent that they would not be good ground for the setting aside of the verdict, or the reversal of the judgment entered upon it. ” But I must be permitted to say that that which is thus declared to be apparent to the court (and this is all they have said upon that subject) is by no means apparent to me, even under the rule so favorable to the respondent, which I have already criticised.
*20The question at issue was the ownership of certain personal property. That this question was involved in much doubt is evident from the charge of the court to the jury, in which we find frequently repeated observations of this character: “This question is in such a situation that it will trouble you some, perhaps, to determine it.” “Possession of personal property by a person is evidence of title in that person; but in this case * * * the relations which they sustained to each other * * * was such that it will be somewhat difficult to determine that question. ” “Now, the case has been contested pretty strongly here on both sides, and it is a pretty nice question, and you must consider it carefully upon all the evidence.” Indeed, it may fairly be said that in almost every sentence of the charge there is some declaration of or allusion to the difficulties presented by this question. Yet it was to this precise question that the evidence referred to related. Some of the evidence excluded was directly to the point that plaintiff ownqd the team, possessed it, and exercised exclusive acts of ownership ' of it, and that the judgment debtor, whom defendant sought to charge with the ownership, never claimed to own it. On the other hand, evidence was admitted of declarations by the judgment debtor, which so far as they showed anything, tended to establish his ownership. On both of these points the court below clearly erred; and I think it equally clear that the errors tended materially to the prejudice of the plaintiff. For these reasons the judgment should be reversed, and a new trial ordered.