42 Kan. 609 | Kan. | 1889
The opinion of the court was delivered by
This was an action brought in the district court of McPherson county by William Bayes, against the Atchison, Topeka & Santa Fé Eailroad Company, to recover damages as follows: In the first count of the plaintiff’s petition he alleged that on or about September 23, 1886, the defendant, in the operation of its railroad, and negligently, caused a fire which destroyed six tons of his hay, worth $24, and 200 rods of his hedge, worth $200. In the second count of his petition he alleged that on October 16, 1886, the defendant, in the operation of its railroad, and negligently, caused a fire which consumed eight tons of his straw, worth
“We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff, and assess his damages at $230.”
No special findings were made. The defendant filed a motion for a new trial upon various grounds, including irregularity and misconduct on the part of the jury, and especially on the part of the juror J. B. Hutchinson. The alleged misconduct of Hutchinson is specifically set forth in the motion. Upon the hearing of the motion two of the jurors, M. A. Ebaugh and W. J. Iliff, were examined as witnesses. Ebaugh testified among other things, that during the deliberations of the jury Hutchinson stated to the other members of the jury that some of his (Hutchinson’s) hedge had been burned in the same manner as the plaintiff’s hedge, by the same company, and that the company had paid him $1.50 a rod as his damages for it; that this statement of Hutchinson was used as an argument to the jury; and that at the time it was made they were nearly through, but had not yet formulated their verdict. Iliff testified that during the deliberations of the jury Hutchinson stated that a quantity of his hedge had been burned; that it was like and about the same amount as the hedge of the plaintiff’s which had been burned; and that the railroad company paid him (Hutchinson) $1.50 a rod therefor. Iliff further testified that the jury had, at the time this statement of Hutchinson was made, pretty generally agreed upon their verdict, excepting one of the jurors. The court below overruled the motion for a new trial, and rendered judgment in favor of the plaintiff and against the defendant for $230 damages and $50 as attorney-fees, and costs of suit; and to reverse this judgment the defendant, as plaintiff in error, brings the case to this court.
We think the motion for a new trial ought to have been
The judgment of the court below will be reversed, and the cause remanded for a new trial.