
    JAMES W. GAITHER vs. THOMAS FEREBEE AND OTHERS.
    When evidence is dired. leaving nothing to inference, and if believed,'is the same thing as the fact m'tight to be preved, the Judge is at liberty to instruct the jury that if they believe the witness, they may find for tho • plaint'ff, pf for the defendant
    But this is m.t a".'vu‘d, where the evidence is circumstantial, or where the evidence offered on U n other side, tends to explain it, or to rebut tbe in-iW-.cvs r t,o be drawn from if, or to contradict the witness.
    This was an action on the cáse tried before Baimv, .Judge, at Fail Tenn of Davie Superior Court, 1863.
    The suit was brought to recover damages from tho defendants for so negligently using their machine for thrashing wheat, that the plaintiff’s wheat which they were thrashing ror hire was burned and consumes!.
    
      The plaintiff proved that- the defendants were employed to thrash his wheat and Basil Graither’s wheat with a thrashing machine. The wheat was in separate parcels, the plaintiff being the owner of one parcel, and his father Basil owner of the other ; but the stacks were close together.
    Thompson,.a witness for the plaintiff, said he had been engaged in manufacturing thrashing machines and other machinery for many years, and had also'beeu running a-thrashing machine for the past twenty years, and that he had skill in machinery; that thrashing machines were liable to heat, and., if not attended to, to catch fire, and that such machinery ought to be frequently oiled’to prevent them from burning ; that it ought to be oiled from every hour to every half hour, and the purer the oil the better it is for that purpose ; that lard was not suitable for oiling it unless prepared by being dripped ; that to prevent heating; much depended upon the machinery being put down right, properly levelled and geared. If a thrashing machine was in proper condition, every way, and kept well oiled, it might safely be run all day' without stopping, and that dirty grease was not proper for greasing thrashing machines.
    Shock said lie had been making thrashing machines for several years, and had been a mill .wriglit for id years, and was skilled in machinery; that thrashing machines were, liable to heat from friction, and frequent oiling was necessary to prevent it. Oil was better than lar.j. and pure Jard than dirty grease, for greasing machinery. That thrashing machines might heat in several parts, as about the cylinders-and where the foot rested ou planks. Spry said ' he was a mechanic, and had experience in running a thrashing machine.- A year before tbe plaintiff's wheat, was-burned, he had opened defendant’s thrashing machine and examined it to see if it was worn ; at that time the zinc or metal on which the cylinder rested, was considerably worn, but not worn through; when worn through, if new, it would heat. Basil Gaither said that in the morning of the day when the wheat was burned, the machine was put down before breakfast; he saw one of the defendants at the machine with the can in which the grease was, as if in the act of greasing the machine before it started ; the machine started about an hour by sun, and very soon after starting the band broke, which was soon mended, and it started again and never stopped until about 11 o’clock, a. m. He never saw it greased after it started in the morning ; he was superintending some of his hands who were clearing up wheat near by ; that the defendant Etchison had three hands besides himself who attended to the horses and the machine, and the witness had 12 or i 3 hands engaged in throwing wheat off the stacks and raking off and putting up the thrashed straw in a. rick, and clearing off the wheat and hauling it off. After stopping a short time, about 11 o’clock, the machine started again Mid ran until they all stopped work for dinner, about 12 o’clock. The threshed straw was raked up and put in the rick, before the hands went to dinner. George Gaither, who was hauling, brought word to him that dinner was ready'; he did mot at once tell defendants, but waited till George Gaither loaded his wagon with wheat, and then he told defendants dinner was ready, and he heard defendant. Etchison tell the hand on the wheat stack tb stop throwing down wheat; there was a considerable bulk of unthrashed wheat piled up. against the machine when they stopped for dinner. When the hands got word about dinner, George Gaither started his wagon to the house at a gallop, and some of defendant’s hands went to water the horses, and witness and the hands clearing up wheat, staid' while a person might have walked 60 or 60 yards, and then went to the house, and witness went into the. whiskey house when the alarm of fire was heard, and he made all speed he could to the thrashing yard ; when he got there, he found the machine burning, • the bulk o^ wheat was burned up, and the fire was catching to the thrashed straw ; he noticed the place where Latham had fire to heat the grease before he went to dinner, and thought the fire was out. Taylor said he was in the house yard at Col. Austin’s plantation and had just eaten his dinner, when he Smelt something burning like dirty grease ; he went into the loft, when he got up there he had a good view of the thrashing yard at Basil Gaither's, he' saw a small puff of smoke, immediately j then a larger, the smoke arose near the wheat stack, and where he found the thrashing machine when he got to the thrashing yard. When he got there he found the machine burning and sinking over to one side ; the wheat stacks burning and catching to the rick. The machine was all burned but the horse power and part of the shaker. *
    Griffith said Ed. Valentine was working.at his house, and he saw him at dinner time the day the wheat was burned, until one o’clock, one mile and a half from Basil Gaither’s.
    The case made by the Judge, sets out other evidence of the same character, introduced by the plaintiff.
    James Latham, witness for defendant, said he was one of the hands employed to work the machine at Basil Gaither’s ; his principal business was feeding and oiling it. The burning occurred between 11 and 12 o’clock, as well'as. he recollects ; was at the stables, when the 'alarm of fire was given, about a quarter of a mile from-the thrashing yard ; rode to the fire as quick as he could ; when he got there the straw was all on fire — the shaker was on fire at the further end from the machine, but no other part of the machine that he saw. The shaker was-about 12 feet long; the machine caught very soon, and was,burnt up very soon after. When he last oilecl the machine he greased it as usual, and examined it to sec if the caps were right, and to remove the trash, if any ; the machine was as cool as it ought to have been after running ; when the machine first started that morning, fire was b.rought by him to the yard for thp purpose of warming the grease that it might be poured into the'can ; he asked the plaintiff .where the fire should be put, and, by his directions, the fire was put in,a place about 20 step's from the machine, and about 20 or 25 from the nearest wheat, the wheat farthest from the fire was first burned-. The fire was used for warming the grease until 9 o’clock, or a little later ; we used dirty grease, some of it was furnished by George Gaither, and some was brought by defendants. The thrashing commenced about' 8 o’clock, and continued three boats. It was in July, the machine was in good repair, one of the caps was lost, huta piece of leather was put in its place, which answered'the same purpose ; during the last heat the witness did not feed ine'machifie, he greased it; tlie heat lasted about an hour each. Naylor, another witness for defendants, said he had- skill in machinery ; he thought laiyl better than sperm oil for greasing machinery, and lard ' oil better than lard ; lard, without being dripped, answered- a good pur-' pose. Eiley, another witness for defendants, heard tlie plaintiff say he believed an enemy had burned his wheat. Grifiiih, defendant’s witness, heard plaintiff say hebelieyed Ed. Valentine had’ burned it. Another witness for defendants, said that the cylinder rested on some composition metal at its ends, and did not touch the-wooden part of the machine by two or three inches.; that he had run a thrashing machine, and, in his opinion, the machine commenced cooling from the time it stopped, and if it did hot fire during the time the wagon was loaded with wheat, it would not fire after that.
    Other evidence of the same general character was given, by the defendants.
    . The Judge instructed the jury that if they were satisfied that the evidence offered on the part of the plaintiff was true, the defendants were guilty of negligence, and they should render a verdict for the plaintiff.
    There was a verdict and judgment for the plaintiff, and the defendants appealed.
    
      Clement for the plaintiff.
    
      Boyden and Winston, Sr., for defendants.
   Pí&rsoN, 0. J.,

For the purpose of showing negligence on the part of the defendants, the plaintiff examined many witnesses, who stated facts and circumstances from which he insisted an inference might be drawn as to how the fire was caused, and fixing the defendants with negligence. To contradict this evidence or to explain it and rebut the inferences which might be drawn from it, the defendants examined many witnesses, and :i the Court instructed the jury that if they were satisfied that the evidence offered on the part of the plaintiff was true, the defendants were guilty of negligence, and they should find a verdict for the plaintiff. If they were not satisfied as to this, but believed the evidence offered by the defendants, they should find a verdict for the defendants.” There w'as a verdict for the plaintiff.

There is error. The verdict must be set aside and a venire de%novo awarded, on the ground that the Judge in the Court below -has not pursued the statute in that case made and provided; and has left the case to the jury in such a manner as to make it impossible for this Court to know wbat his opinion was on the question of law arising on the facts of the case, and of course making it impossible to review his decision.

The statute requires the Judge “ to state, in a full and correct manner, the evidence given in the case and declare and explain the law arising thereon.” Rev. Code, ch. 31, sec. 130.

It is not essential, by the true construction of this statute, that the Judge shall recapitulate all of the evidence in detail. It is sufficient for him to call the attention of the jury to the material parts of it, and he is then .to declare his opinion of the law arising thereon ; that is, he is to charge what the law is on a given state of facts; For instance, he is to instruct the jury, that in order to make out his case, the plaintiff must establish by the evidence certain facts, or, in order to support his plea, the defendant must establish certain facts, and leave it to the jury to decide whether the evidence does or does- not establish the facts necessary to sustain the action or the plea. In this way it is made to appear by the record what facts the jury find, and what is the opinion of the Judge as to the law arising thereon.

When the evidence is direct so as to leave nothing to inference, and the evidence if believed is the same thing as the fact sought to. be proved, the' Judge is at liberty to instruct the jury that if they believe the witness they should find for the plaintiff, or for the defendant, and this may be done even when many other witnesses are examined in support of the principal witness, or to contradict him. This mode of leaving a case to the jury is allowed in such cases, because it is easy and the main purpose is accomplished, viz: it shows what facts are found by the verdict, and what is the opinion of the Judge as to the law arising thereon; but this indulgence can not be extended to cases like the one before us, where the evidence is altogether circumstantial, and that offered on the other side tends to explain it, or to rebut the inferences, or to contradict some of the witnesses, because the main purpose is «not accomplished; the Judge does not declare or explain the law to the jury,” and there is no telling what facts the jury find, or what was the opinion of the Judge bn the questions of law arising thereon. So the decision can' not be reviewed, and the testimony is thrown broadcast to the jury, and they are to fake the responsibility of making a final decision !

Suppose the jury should render a special verdict, not finding the facts, but setting out all of the testimony, such as that offered in this case! Could the, Judge decide the case upon such a verdict ? Or if he did undertake to do it, would it be in the power of this Court to review his decision ? Certainly not; for he can not know what the facts are, nor can this Court know what he supposed them to be. This subject is discussed in an opinion delivered at this term—State vs. Norton—a reference to which will aid in its elucidation, and show the distinction between the evidence in a case and the facts established by such evidence; Sometimes the difference is not so obvious, but in a case like the present it is glaring. '

Judgment reversed and 'venire de novo.  