*24Filed September 8, 1914.
Dissenting Opinion.
(143 Pac. 922.)
Mr. Justice Burnettdelivered the following dissenting opinion:
The opinion by Mr. Justice Moore in this case discusses the ruling of the Circuit Court admitting evidence of the change of the situation of the metal platforms after they had fallen upon the plaintiff’s leg, and deduces the proper conclusion that this was error. The reasoning of the opinion and the precedents cited in its support are then relegated to desuetude by this statement:
“Notwithstanding such error, a careful examination of the entire testimony given at the trial, and which is made a part of the bill of exceptions, induces the conclusion that we cannot affirmatively say there is no evidence to support the verdict, and under the procedure prescribed by Article VII, Section 3 of the Constitution of Oregon, as amended November 8, 1910, the misapprehension of the rule of law must be regarded as harmless.”
The hackneyed sentence of that section to which the opinion alludes is this:
“In actions at law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict”: Article VII, Section 3 of the Constitution.
The appeal in this case does not call upon this court to re-examine any question of fact. The error complained of, and for which a reversal is sought, is one *25of law committed by tbe trial court in receiving as evidence what the opinion, the authorities there cited, and many more not mentioned, unite in condemning as inadmissible. Of course, a reversal of the case because of this error of law would lead to a re-examination of the questions of fact involved; but the new investigation would not be otherwise than by a jury, which would keep the procedure strictly within the constitutional injunction.
The plain meaning of the quoted excerpt from the Constitution is that when, as the result of a regularly conducted trial by jury, a verdict is returned, it must be thereafter respected as a conclusive declaration of fact, with the sole qualification that, if the court can say that there is no evidence to support it, the decision of the jury may be disregarded. But what is trial by jury, and what is its product, the verdict, to which we are confined as an exponent of the facts? Mr. Justice Gray in Capital Traction Co. v. Hof, 174 U. S. 1 (43 L. Ed. 873,19 Sup. Ct. Rep. 580), says:
“ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American Constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.”
Mr. Justice McBride thus states the principle under the amended form of our Constitution in State v. Rader, 62 Or. 37 (124 Pac. 195):
*26“But, for the jury to find the fact, the court must see that they receive only legal evidence, and no good finding of fact can ever be predicated upon illegal evidence.”
Mr. Justice Ramsey enunciates the doctrine in these words in Sullivan v. Wakefield, 65 Or. 528, 535 (133 Pac. 641, 643):
“A verdict, to be protected from re-examination, under the section of the Constitution cited, mnst be one rendered in a court having jurisdiction of the parties and of the subject matter, on a trial where there were no reversible errors of law committed by the court, and where there was some legal evidence to support the verdict.”
Again, Mr. Justice Moore, in Buchanan v. Lewis A. Hicks Co., 66 Or. 503, 511 (134 Pac. 1191, 1192), says:
“It will thus be seen that the right, upon appeal, to correct a judgment, rests upon an error of law committed by the trial court', and not upon the re-examination of any fact tried by a jury, except in cases where the Supreme Court can affirmatively say there is no' evidence to support the verdict.”
In that opinion, also, Mr. Justice Moore, in common with Mr. Justice Ramsey in Sullivan v. Wakefield, 65 Or. 528 (133 Pac. 641), quotes with approval this language from Forrest v. Portland Ry., L. & P. Co., 64 Or. 246 (129 Pac. 1051):
“An invulnerable verdict must be a conclusion of a fact by a jury regularly impaneled, as the result of a trial in which the rights of all parties in respect to the admission or exclusion of testimony have been observed in all material particulars under proper instructions of the court as to the law.”
It is essential to a jury trial that the judge rule correctly on the law as it is that the jury hear the testimony. By so much as either ingredient is want*27ing, by so much does tbe proceeding come short of a constitutional trial by jury. In this case the rights of the appealing defendant were abused in a matter of law by the error of the court in allowing a witness to testify that after the accident the platforms were found piled in the gutter. The record discloses that plaintiff’s counsel said at the time:
“I want to show that that iron could have been piled in there between that pile and those posts.”
His manifest purpose, in face of the authorities quoted to the contrary, was to show by the subsequent placing of them in the gutter that it was negligence to put them where they were at first. To correct this prejudicial error, as we should, is not to re-examine the facts. It is only to consider a question of law on which the trial court was mistaken. "We have already done this in similar cases, and sent them back for new trial on account of such infractions of the rules of evidence, even since the amendment of the organic law. In State v. Hill, 63 Or. 451 (128 Pac. 444), this court, speaking by Mr. Justice McBride, declined to disturb the verdict directly, because there was some evidence in its favor, but reversed the case on account of errors in law occurring at the trial. Again, in Tonseth v. Portland Ry., L. & P. Co., 70 Or. 341 (141 Pac. 868), although there was ample evidence to sustain the verdict, the judgment was reversed, Mr. Justice Moore writing the opinion, for the reason, among others, that the court had permitted the defendant to cross-examine the plaintiff on a written statement signed by him without first showing him the writing. As it was a declaration against his own interest by a party to the action, it might have been proven against him as part of the defendant’s case, without calling the plaintiff’s attention to it. Notwithstanding his prompt admis*28sion that he had signed the document, however, and without any showing that he had been surprised or misled, this court, treating him as a mere witness, held it was prejudicial error to ask him about the statement without first exhibiting it to him, and so reversed the case. If such an error in the manner of confronting a party with his own deliberate written statement was sufficient to reverse the judgment against Tonseth in an action which he commenced, the similar, though more flagrant, error here in question, by like reasoning, ought to work a reversal of the judgment against the appealing defendant in an action forced upon it.
The error complained of was material and prejudicial. It does not appear in testimony by whom or by whose order the platforms were piled in the gutter after the plaintiff was hurt; but the court permitted him to show the subsequent act, whose author was not disclosed, all for the purpose of fastening the charge of negligence upon the defendant. In view of the language of plaintiff’s counsel when he insisted in putting in the testimony in question, the jury quite probably concluded, as the attorney intended they should, that the change made in the situation of the platforms after the accident was a confession of negligence on the defendant’s part in depositing them in the position from which they fell in the first place.
It is true the amended Constitution empowers this court to affirm a judgment, notwithstanding any error committed during the trial, if, after consideration of all the testimony, the charge of the court, and any other matter material to the decision, which may be annexed to the bill of exceptions, we are of the opinion that the judgment was one that ought to have been rendered. This, however, is only a declaration in constitutional form of the law as it has existed in this state *29ever since the act of October 20, 1864, as embodied in Section 556, L. O. L.:
“Upon an appeal from a judgment, the same shall only be reviewed as to questions of law appearing upon the transcript, and shall only be reversed or modified for errors substantially affecting the rights of the appellant. * * ”
The value of precedents established under that statute is not destroyed by the constitutional amendment, especially when in its own terms it declares that:
“The courts, jurisdiction and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law.”
Writing the opinion in Aldrich v. Columbia Ry. Co., 39 Or. 263 (64 Pac. 455), Mr. Justice Moore used this language:
“It is contended by defendant’s counsel that an error was committed by the court in the admission of this testimony; but plaintiff’s counsel maintain that, if tbe testimony was immaterial, the defendant was not injured thereby, unless it was prejudicial, and, not having specified that the testimony was prejudicial, any error committed in this respect is not subject to review. We think otherwise, however; for the rule is well settled in this state that while error will not be presumed, yet when it appears from the transcript there is no presumption that it was rendered harmless or obviated during the trial, while the record is silent. ’ ’
The following precedents are there cited: Dubois v. Perkins, 21 Or. 189 (27 Pac. 1044); Nickum v. Gaston, 24 Or. 380 (33 Pac. 671, 35 Pac. 31); Cleveland Oil Co. v. Norwich Ins. Co., 34 Or. 228 (55 Pac. 435); Carney v. Duniway, 35 Or. 131 (57 Pac. 192, 58 Pac. 105).
Mr. Justice Moore more succinctly states the rule thus in Carter v. Wakeman, 45 Or. 427, 430 (78 Pac. 362, 363):
*30“When it is manifest that an error has been committed, prejudice will be presumed, unless it affirmatively appears from an inspection of the record that no prejudice could have resulted therefrom.”
See, also, Durkee v. Carr, 38 Or. 189 (63 Pac. 117), and State v. Coodager, 56 Or. 198 (106 Pac. 638, 108 Pac. 185).
The reason of the precedents above cited was sound when they were established, and they are equally potent under the present Constitution, which only reiterates a long-standing statutory rule. Of course,many situations occur where error is harmless, as, for instance, where the fact sought to be proven by the objectionable testimony is either admitted by the adverse party, or is otherwise shown by conclusive evidence, or the challenged testimony is withdrawn from the jury and the like. Such, however, is not the condition here. The portion of the opinion quoted at the outset amounts to saying that a little leaven of legal testimony in a case will leaven the whole lump of whatever error is injected into the record by overzealous counsel, or inadvertently permitted by an overworked judge, in the hurry of the trial. The fallacy of the majority utterance on this point consists in confounding a possible error of fact made by the jury with an error of law committed by the court. It is only when we are called upon to re-examine a question of fact on appeal in an action at law that we are restricted by the clause of the Constitution to which the opinion of Mr. Justice Moore alludes. It has no reference to questions of law. The mere presence of some legitimate testimony in the record, however, is not the touchstone by which to determine whether the rights of a litigant have been protected by the rulings of the court in matters of law. If it were, any declaration *31of fact by a jury, however obtained, would be immune from attack on appeal, almost without exception, for it is rare that a case is utterly devoid of any testimony in favor of the prevailing party, though his record may be full of the most unjust and egregious errors.
While we are confined in our review of the facts to instances where there is ño evidence to justify the verdict, we are nevertheless in duty bound, as much as ever, to uphold the rules of law as established aforetime by statute and precedent. To do otherwise is to invite uncertainty and confusion, to promote litigation, and to unsettle the foundations of the law.
For these reasons, I dissent from the conclusion of my judicial Brethren.