The opinion of the court was delivered by
Horton, C. J.:
1 New trial duty to grant. 2 Mustie granted. In passing upon the motion for a new trial, the trial judge stated, inter alia, “that the verdict did not meet the approval of his judgment;” that it was “largely in excess of what would be full compensation to the owner of the land;” that he would “stand out of the way,” and then overruled the motion. It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mjstake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the questions at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. When a trial judge overrules a motion pro forma, and declines to look into the facts or pass upon its sufficiency, he misconceives his duty and commits fatal error. He has no right “to stand out of the way” and against his judgment overrule such a motion. He must approve or disapprove the verdict. If he approves, he may overrule the motion for a [13]*13new trial; if he disapproves, he should set it aside and permit another jury to pass upon the facts. The following cases fully sustain the foregoing conclusions, and therefore the judgment of the district court must be reversed: Atyeo v. Kelsey, 13 Kas. 212; Williams v. Townsend, 15 id. 563; Railway Co. v. Kunkel, 17 id. 145; The State v. Bridges, 29 id. 138; Railroad Co. v. Keeler, 32 id. 163; A. T. & S. F. Rld. Co. v. Dwelle, 44 id. 394.
We are asked, on the part of Ryan, to expunge from the record the opinion or statements of the trial judge made by him in passing upon the motion for a new trial. We are referred to the case of King Co. v. Hull, 25 Pac. Rep. 927. There is no such case as King Co. v. Hull reported in 25 Pac. Rep. 927. The case of Salazar v. Longwill (S. C. of New Mexico) appears on that page. King Co. v. Hill et al. (S. C. of Washington) is reported in 25 Pac. Rep. 451, but the quotation cited in the brief is not found in the opinion. If, however, any case in the 25 Pac. Rep., or iu any other report, contains the language quoted in the brief, about striking out the opinion of the trial judge from a transcript, it would seem to us that such a motion was well taken and properly decided, but upon the sole ground that the opinion was not a part of the transcript. In the case at bar, the opinion of the trial judge is preserved in the case-made; therefore it is properly here for our consideration. This court has the right to ascertain from a record, made up and certified to in due form, whether the verdict of the jury has the approval of the trial judge. He has the same opportunity to see and hear the witnesses as the jury; and if, in his judgment, the jury have erred, it is proper, in disposing of a motion for a new trial, for the trial judge to so state. If he disapproves the verdict in as strong language as quoted, this court, having that knowledge from the record, will not hesitate to reverse the judgment and grant a new trial.
As the case must go back for another hearing, other matters discussed in the briefs may be beneficially noticed. The appeal was perfected January 24, 1887. Within a few days [14]*14thereafter the papers were transmitted to, and the case was docketed in, the district court. At that time, the “Olathe company” was in existence as a corporation. On March 28, 1887, the “Olathe company” and the “railway company” were consolidated into the “Kansas City,Wyandotte & Northwestern Eailroad Company.” Article 1 of the written agreement for the consolidation of these companies expressly provided that—
“The constituent corporations hereby agree to consolidate and form one company, to be called ‘The Kansas City, Wyandotte & Northwestern Eailroad Company/ which shall own, complete, maintain, operate and control said continuous and consolidated lines of railroads, with all the rights, powers, privileges and immunities of either of the constituent corporations, and subject to all the obligations and liabilities of every nature to which either of the constituent corporations is subject.”
Upon the consolidation, the Kansas City, Wyandotte & Northwestern Eailroad Company not only assumed all the obligations of the Olathe company and the railway company, but thereby became liable to pay to Eyan and other landowners the value of all land taken for the right-of-way of the Olathe company, and all damages thereto. On January 19, 1889, in accordance with the better practice, Eyan filed a petition alleging all the facts necessary for a recovery against the Kansas City, Wyandotte & Northwestern Eailroad Company, and expressly alleging that this company “assumed all the obligations and liabilities of every nature and kind of the companies so consolidated.” We think that there was no necessity for the district court to compel an election. Eyan had proceeded regularly; he had taken his appeal as the statute prescribed; he had filed his transcript, and had his case docketed. When the Olathe company ceased to exist, on account of its consolidation with another company, the issues were properly framed by pleadings against the new company. Instead of trying the case upon the transcript only, it should have gone to the court and jury upon the pleadings and the evidence presented thereunder. Whatever construction may be given [15]*15to § 40, in connection with §§ 433 and 434 of the civil code relating to substitution and revivor, it is clearly apparent from the allegations of the petition and the articles of consolidation that the Kansas City, Wyandotte & Northwestern Railroad Company is responsible to the plaintiff below for the value of the land and all damages for which the Olathe company was, at the time of its corporate death, liable, and upon the same terms and conditions. The new railroad company expressly assumed, in writing, all of the obligations and liabilities of every nature of the Olathe company, and may be held therefor. The petition was filed in ample time to recover, upon the written articles of consolidation and the' facts therein alleged.
The court in its instructions to the jury, in referring to the expert testimony as to the value of the property taken for the right-of-way before and after the construction of the railroad, not only called the attention of the jury to such testimony as “ the best that could be furnished,” but also suggested to the jury that—
“The best the jury can do, I suppose — and that is for them to determine — would be to take into consideration all this testimony on both sides, and then apply their common knowledge, and the results of their observation down there, and from it all determine whether, after finding what the average is, whether that is a fair valuation and ought to be adopted, or whether they will discard certain witnesses’ testimony, and adopt that of others that they have more confidence in. That is a matter for you to determine.
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The opinion of the court was delivered by
Horton, C. J.:
1 New trial duty to grant. 2 Mustie granted. In passing upon the motion for a new trial, the trial judge stated, inter alia, “that the verdict did not meet the approval of his judgment;” that it was “largely in excess of what would be full compensation to the owner of the land;” that he would “stand out of the way,” and then overruled the motion. It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mjstake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the questions at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. When a trial judge overrules a motion pro forma, and declines to look into the facts or pass upon its sufficiency, he misconceives his duty and commits fatal error. He has no right “to stand out of the way” and against his judgment overrule such a motion. He must approve or disapprove the verdict. If he approves, he may overrule the motion for a [13]*13new trial; if he disapproves, he should set it aside and permit another jury to pass upon the facts. The following cases fully sustain the foregoing conclusions, and therefore the judgment of the district court must be reversed: Atyeo v. Kelsey, 13 Kas. 212; Williams v. Townsend, 15 id. 563; Railway Co. v. Kunkel, 17 id. 145; The State v. Bridges, 29 id. 138; Railroad Co. v. Keeler, 32 id. 163; A. T. & S. F. Rld. Co. v. Dwelle, 44 id. 394.
We are asked, on the part of Ryan, to expunge from the record the opinion or statements of the trial judge made by him in passing upon the motion for a new trial. We are referred to the case of King Co. v. Hull, 25 Pac. Rep. 927. There is no such case as King Co. v. Hull reported in 25 Pac. Rep. 927. The case of Salazar v. Longwill (S. C. of New Mexico) appears on that page. King Co. v. Hill et al. (S. C. of Washington) is reported in 25 Pac. Rep. 451, but the quotation cited in the brief is not found in the opinion. If, however, any case in the 25 Pac. Rep., or iu any other report, contains the language quoted in the brief, about striking out the opinion of the trial judge from a transcript, it would seem to us that such a motion was well taken and properly decided, but upon the sole ground that the opinion was not a part of the transcript. In the case at bar, the opinion of the trial judge is preserved in the case-made; therefore it is properly here for our consideration. This court has the right to ascertain from a record, made up and certified to in due form, whether the verdict of the jury has the approval of the trial judge. He has the same opportunity to see and hear the witnesses as the jury; and if, in his judgment, the jury have erred, it is proper, in disposing of a motion for a new trial, for the trial judge to so state. If he disapproves the verdict in as strong language as quoted, this court, having that knowledge from the record, will not hesitate to reverse the judgment and grant a new trial.
As the case must go back for another hearing, other matters discussed in the briefs may be beneficially noticed. The appeal was perfected January 24, 1887. Within a few days [14]*14thereafter the papers were transmitted to, and the case was docketed in, the district court. At that time, the “Olathe company” was in existence as a corporation. On March 28, 1887, the “Olathe company” and the “railway company” were consolidated into the “Kansas City,Wyandotte & Northwestern Eailroad Company.” Article 1 of the written agreement for the consolidation of these companies expressly provided that—
“The constituent corporations hereby agree to consolidate and form one company, to be called ‘The Kansas City, Wyandotte & Northwestern Eailroad Company/ which shall own, complete, maintain, operate and control said continuous and consolidated lines of railroads, with all the rights, powers, privileges and immunities of either of the constituent corporations, and subject to all the obligations and liabilities of every nature to which either of the constituent corporations is subject.”
Upon the consolidation, the Kansas City, Wyandotte & Northwestern Eailroad Company not only assumed all the obligations of the Olathe company and the railway company, but thereby became liable to pay to Eyan and other landowners the value of all land taken for the right-of-way of the Olathe company, and all damages thereto. On January 19, 1889, in accordance with the better practice, Eyan filed a petition alleging all the facts necessary for a recovery against the Kansas City, Wyandotte & Northwestern Eailroad Company, and expressly alleging that this company “assumed all the obligations and liabilities of every nature and kind of the companies so consolidated.” We think that there was no necessity for the district court to compel an election. Eyan had proceeded regularly; he had taken his appeal as the statute prescribed; he had filed his transcript, and had his case docketed. When the Olathe company ceased to exist, on account of its consolidation with another company, the issues were properly framed by pleadings against the new company. Instead of trying the case upon the transcript only, it should have gone to the court and jury upon the pleadings and the evidence presented thereunder. Whatever construction may be given [15]*15to § 40, in connection with §§ 433 and 434 of the civil code relating to substitution and revivor, it is clearly apparent from the allegations of the petition and the articles of consolidation that the Kansas City, Wyandotte & Northwestern Railroad Company is responsible to the plaintiff below for the value of the land and all damages for which the Olathe company was, at the time of its corporate death, liable, and upon the same terms and conditions. The new railroad company expressly assumed, in writing, all of the obligations and liabilities of every nature of the Olathe company, and may be held therefor. The petition was filed in ample time to recover, upon the written articles of consolidation and the' facts therein alleged.
The court in its instructions to the jury, in referring to the expert testimony as to the value of the property taken for the right-of-way before and after the construction of the railroad, not only called the attention of the jury to such testimony as “ the best that could be furnished,” but also suggested to the jury that—
“The best the jury can do, I suppose — and that is for them to determine — would be to take into consideration all this testimony on both sides, and then apply their common knowledge, and the results of their observation down there, and from it all determine whether, after finding what the average is, whether that is a fair valuation and ought to be adopted, or whether they will discard certain witnesses’ testimony, and adopt that of others that they have more confidence in. That is a matter for you to determine. You must take care, however, that you are not to agree beforehand among yourselves that you will take the testimony of these witnesses and average them and adopt the result as your verdict; that you must not do beforehand. But if you ascertain what the average is first, and then conclude that that is a fair compensation afterward, there is nothing in the law to prevent you from adopting that as your verdict, but you must not beforehand agree to be bound by that result. But if you arrive at such a result, and are satisfied with it, each one for himself, and then you adopt it, you may do so.”
In Ball v. Hardesty, 38 Kas. 540, it was said:
“The testimony of expert witnesses, this court has repeatedly held, must be considered like all other testimony; it must [16]*16be tried by the same tests, and receive just such weight as the witness is entitled to, in connection with all the circumstances of the case.”
In Railroad Co. v. Drake, 46 Kas. 568, it was decided that —
“In an action to determine the value of certain town lots condemned for the right-of-way of a railroad, the opinions of witnesses as to the value of the lots at the time they were condemned will not be deemed conclusive, but the jury may consider such opinions in connection with all the other testimony in the case, and then, for itself, determine from all the testimony the value of such lots.” Anthony v. Stinson, 4 Kas. 211; Railroad Co. v. Thul,32 id. 257; Heithecker v. Fitzhugh, 41 id. 50; Head v. Hargrave, 105 U. S. 45; Pingrey v. Railroad Co., 78 Iowa, 438.
3' straction’liexAs the jury are ordinarily inclined to give great weight to whatever a trial judge may say to them, the testimony of the experts should have been submitted to the jury? not as the best evidence, but for them to take it
and decide what weight, if any, should be given to the same.
4 verdict — ex-ages^ — average tkeoiy. Again, it is possible the jury might have been misled by the instruction concerning the “average theory.” It is hardly proper to suggest to the jury to ascertain what the average is first, and then to decide whether that is a fair compensation. Any suggestion to reach a verdict by adopting the “average theory” might result in a verdict from an agreement upon such a basis, rather than from deliberate judgment upon the evidence of those witnesses in whom the jury had the most confidence. Each member of the jury should arrive at his verdict after a careful consideration of all the evidence in the case, and the suggestion of averaging the evidence, coming from a court, might cause the jury to agree to “an average” without a further consideration of all the evidence in the case. Although a court might be justified in refusing to set aside a verdict made upon the “average theory,” it does not follow that a court would be authorized to.suggest such mode by an instruction. [17]*17Thomas v. Dickinson, 12 N. Y. 364; Allard v. Smith, 2 Metc. (Ky.) 297; Bailey v. Beck, 21 Kas. 462; Johnson v. Husband, 22 id. 277; Werner v. Edmiston, 24 id. 147; City of Kinsley v. Morse, 40 id. 588. The language about the evidence of the experts “being the best,” and the reference to ascertaining first “the average,” might have been omitted with advantage from the instructions.
There are other matters referred to in the briefs, but in view of a new trial we do not think that further comment is necessary.
The judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring.