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expected in ordinary human affairs. In criminal trials this high standard is called for; evidence conclusive beyond a reasonable doubt is required before a man accused can be convicted. In civil cases a less rigid standard secures more satisfactory results; here proof by preponderance of evidence only is necessary, quality as well as quantity being elements in the preponderance.
Engineer may Secure Evidence. The engineer has to deal with the performance of contracts, and is often directly in contact with what is done in connection with them. Cases of negligence or of trespass are also frequently within the knowledge of the engineer. He is often early on the scene of an accident. In one way or another, therefore, the engineer is on hand and in position to secure facts, evidence then obtainable but soon lost through changed conditions, so that it is of great importance that he should have some knowledge of the qualities of evidence both with a view to its competency which permits its introduction, and also with a view to its importance, in getting together enough facts of a valuable and convincing sort, so that the interests of his employer shall be adequately protected. Many cases in court have been lost because of insufficient evidence to establish actual facts favorable to one party, for the reason that nobody at hand had knowledge of what evidence was competent and valuable, and of how and by whom it could be presented in court.
Quality of Evidence. Evidence, and particularly the evidence of witnesses, is measured, the weight to be given it is determined, first by. our general knowledge and belief, to which evidence commends itself as being reasonable ; second, by our faith in human testimony, as a matter of experience; third, by the influence or effect of other collateral facts presented which bear upon a point in controversy. The value of the evidence of any witness thus depends on:
1. His opportunity of observing the matter he relates.
2. His powers, natural and acquired, of perception and observation; including his temperamental qualities.
3. Whether the facts in question were sufficiently within his experience and training to have secured careful observation.
4. His memory, taking into account lapse of time and opportunity for refreshing memory.
5. His reputation as to honesty or his apparent honesty. These are matters which directly appeal to juries.
Classes of Testimony. But the courts, the judges, through the experience of years, have found that certain classes of testimony are definitely unreliable and should not be considered, and so should not be admitted in evidence; that certain other classes are comparatively unsatisfactory and should be admitted only when more reliable testimony
has become unavailable. In such ways the law relating to the admissibility of evidence has become established.
Irrelevant or Immaterial. When the real issues in a case have been defined by the pleading, evidence is rejected if it be irrelevant or if it be immaterial. In either case it not only adds to the mass of evidence (which is undesirable) but it further opens an opportunity for the jury to acquire a prejudice or to draw conclusions from this testimony which from the law point of view are all wrong, so that such evidence is detrimental to justice and properly shut out.
Sometimes evidence is temporarily rejected as irrelevant, and afterwards admitted when a foundation is laid by other evidence which shows it to have a proper bearing on the case. The skill of the lawyer is of importance here, and the engineer may often aid the lawyer in a preliminary conference, for the reason that in technical matters the bearing of facts may be clearer to him than to the lawyer.
Another requisite is that the evidence offered shall be the “best evidence" available; further attention will be devoted to this point later.
Direct, Indirect, Circumstantial. Evidence may be divided into three main classes ; direct, indirect or circumstantial evidence, and real evidence. Each of these requires, in general, oral testimony for its introduction.
Judicial Notice. There is, however, one class of evidence which requires only presentation by the attorney to secure its acceptance by the court; that is, evidence of which the court will take “ judicial notice.”
This procedure of taking judicial notice, like that of having the pleadings lead to as simple a point, or points of controversy as possible, is clearly adopted to promote simplicity of action in court and facilitate generally the conduct of the trial. There are many matters of law which it is within the province or the duty of the court to know, and which should, and do, require no proof. The court must know the Common Law, the Constitution of the State and of the United States, statutes, treaties, law of nations, municipal charters and ordinances, the courts and the court practice within its own State. While the court does not take judicial notice of the statutes or the Common Law of other States, it accepts without question the fact that the printed reports of another State do define the law as applied in that State. Most of the above matters the court is under obligation to take judicial notice of. In many cases the court may exercise discretion, but this will generally be exercised under the Common Law principle of following precedent when the cases are substantially identical or very similar.
Examples. The court will thus judicially notice well-known geographical facts, the general location of cities or counties, but perhaps not
the precise boundaries of towns, certainly not of private property; for this, evidence must be submitted. It will judicially notice distances or the position of location of a long-established railroad; the facts of the almanac, including the time of sunrise or moonrise, the time of the tides; tables of logarithms, astronomical computations; and there would appear to be no reason why other tables such as those for earthwork computation, or for railroad curves, should not be treated similarly.
As a further example, it has been judicially noticed in one court or another that the Mississippi River at New Orleans is a tidal river; that the Connecticut above the Holyoke dam is not a public highway for commerce with other States or countries. The court takes notice of the common properties of matter and well-established facts of science, probably of much more now than forty or fifty years ago when school instruction failed to cover such matters; that photography, for instance, is a well-established process for obtaining correct representations of objects or scenes, so that this need not be shown (but definite evidence must be presented that a particular photograph is a correct representation of the things shown by it). There are many matters of common knowledge among intelligent people which need not be proved by evidence. The judge may, in matters of knowledge readily ascertainable, refer for his own enlightenment or refreshment of knowledge, to a cyclopedia or any book or source of information he pleases, to aid him.
Discretion of Judge. These matters are legal technicalities and the determination as to their introduction lies in the discretion of the court; the lawyer's advice is both available and necessary as to the matter and the manner in presenting this and all other evidence at a trial; nevertheless it is extremely desirable that the engineer should have some working knowledge or appreciation whether such evidence is undisputed; it is often of importance; the opportunity to acquire all necessary evidence may occur before he has had opportunity for preliminary consultation with his lawyer.
Statutes. In some States there are special statutes governing such testimony; in Iowa, for instance, books of science and charts made by unprejudiced parties are allowable in evidence to make a prima facie case; yet the court here has held that an extract from a treatise on brakes was not admissible to show the distance in which a train would stop when it did not give the size of train, pressure of brakes, nor the grade; and in Iowa, the Railway Age has been held not to be a book such as is admissible in this way.
Instruments of Evidence. The instruments of evidence are; witnesses, real evidence, documents. Of these, documents are generally the most definite, and for that reason very satisfactory. They include
writings, printed matter, pictures, maps, diagrams. The method of introducing these will be taken up later.
Real Evidence. Real testimony is that directly brought to the sight or to the senses of the court or jury, who are thus enabled, by inspection and without the testimony of others, except to identify it, to appreciate and understand this evidence. A coroner's jury has real evidence of death in the corpse; in murder or assault the pistol or ax used is often put in evidence. Persons injured and brought into the courtroom constitute another example of real evidence. In case of an accident in a machine shop, a chain, a hook, a broken iron ring, the cause of the accident, are in the courtroom as real evidence, partly to make the testimony and descriptions more intelligible, partly so that the fracture of the ring, and the ring itself, may be inspected by the jury.
View. It is not uncommon for a jury to “ view a piece of real estate in controversy, or the scene of an accident; when the roof of a railroad car was blown off and killed a man, the jury“ viewed” the roof, which had been brought into a warehouse for safe keeping. A view is usually granted when the jury cannot acquire a clear or proper understanding of the premises, or the object, from the evidence alone. Whether a view shall be had lies in the discretion of the judge.
These are examples of real evidence.
Witnesses. Although the evidence of witnesses has elements of weakness, it is nevertheless the most important of all; not only does it constitute a large part of that presented in the greater share of cases, but it is further true that either documentary or real evidence usually requires some basis of oral testimony as a preliminary to its introduction.
It should be understood that a witness duly summoned into court must appear and give testimony to any facts of the case within his knowledge, under penalty of fine or imprisonment for failing to appear, or for refusing to answer the questions asked him (with some special exceptions). Among these exceptions a witness may at any time refuse to answer a question on the ground, if true, that his answer would tend to incriminate himself. Clearly this is an undesirable position for a witness to be forced into. A witness duly summoned is also liable to a suit for damages for failing to appear.
Direct and Indirect Evidence. Direct evidence is that of a witness to acts which he saw or heard or which impressed themselves upon his senses, or to facts which in a similar way are within his knowledge, when these acts or facts are those definitely and directly in issue.
Indirect evidence on the contrary is similar evidence of a witness to collateral facts or acts which bear upon the point at issue and, together with other testimony, go to make up a state of facts from which the fact
in issue may legitimately be inferred or deduced. A series of circumstances is interwoven in such fashion as to be inconsistent with any other state of fact than the one sought to be established, and so become convincing although no direct testimony is available; the term “circumstantial evidence is probably a more common and a better known term than 'indirect evidence."
Comparative Value. As to the comparative value of the two kinds of evidence, direct and circumstantial, there seems to be some divergence of opinion. Direct testimony is probably held in not quite as high regard by judges and attorneys as it is by the jury or by people generally. It is a well-known fact that the stories of direct witnesses will differ in detail, sometimes widely, even in cases where there is no suspicion of fraud or dishonesty. Few people are accurate observers, and memory plays strange tricks, so that there is always opportunity for error even where fraud and prejudice are absent.
The direct witnesses are, in the nature of things, few in number in most cases, and the opportunity for false and fraudulent testimony is especially good, since a very simple story commonly suffices. Circumstantial evidence, on the contrary, to be effective, must have its parts fit in so as to make a well-built and coördinated case; it often requires a number of witnesses who must testify to facts which together form a more complex case, and these witnesses must hold their own, often under a searching cross-examination. That circumstantial evidence should often be more conclusive than direct, seems altogether logical. Nevertheless, the human mind acts in such a way that the average juror probably tends to give greater weight to direct evidence; an index of that is found in the fact that men are plenty who will refuse to convict on circumstantial evidence in a murder case where conviction leads to capital punishment.
Best Evidence Rule. Whether the evidence be direct or indirect, it must be the best evidence. The "best evidence” rule is probably the widest known of the rules of evidence and is well accepted, although not literally followed in all cases. The rule is that the evidence presented shall be the best that the nature of the case will admit; and no evidence is admissible which shows the existence of better evidence unless the absence of this better evidence is properly accounted for. Under this rule the best evidence of the terms of a deed for land is the writing or deed itself. The best evidence of what a contract covers is the contract in writing (if there is one in writing). Oral testimony of its terms is inferior and inadmissible, so long as the written contract is in existence and