53 How. Pr. 385 | N.Y. Sup. Ct. | 1877
This cause' was tried at the January, 1877, Albany circuit, before the judge giving this opinion, and resulted in a verdict in favor of the plaintiff for the sum of $14,000. The facts of the case were these: On the 8th day of July, 1873, the plaintiff was driving a pair of horses to a wagon laden with pressed hay from his home in Westerlo, Albany county, to Ooeymans Landing. The distance between the two points was thirteen and a half miles. The road which the plaintiff traveled was known as the Ooeymans and Westerlo turnpike, and its general direction was east and west. About one or two miles from Ooeymans Landing, the- Athens and Schenectady branch of the defendant’s railroad, the general direction of which is north-westerly and south-easterly, crosses the said turnpike road, and in passing over the railroad track, in consequence solely, as the plaintiff claimed and as the jury must have found, of the railroad crossing being rough and out of repair, the wagon of the plaintiff broke down, causing him to fall so heavily as to break his right leg near the hip. The plaintiff was confined constantly to his bed until the first of October follow-' ing, and his injured limb is now shortened one and a half inches, compelling him to use two crutches, and permanently incapacitating him for general labor. At the time of the injury the plaintiff was forty-five years of age, an unusually healthy and vigorous man, and had been and still is (so far as his disabled condition allows ) an industrious and intelligent farmer.
The questions of fact which the case involves, were, as we think, after- a careful reading of the charge, impartially and without any coloring submitted to the jury, and the result was the verdict above stated. Upon the subject of damages the jury were charged: “If you come to the question of
In discussing the point, the remarks of Kent, C. J., in Coleman agt. Southwick (9 Johnson, 45), which has often been approved (see, among other cases, Collins agt. The A. and S. R. R. Co., 12 Barbour, 496), should be borne in
It will readily be seen that the case afforded the jury a wide range of thought, and of calculation. The main items of damages are these in regard to which the minds of men could readily differ. A sound leg has no particular market value, nor is the standard by which the damages caused by physical pain and suffering are to be measured to be found in
We are aware that cases can be found in which the court has sometimes set aside and sometimes reduced verdicts. Upon what principle the latter has been done has never been very apparent. If the court reduces a verdict, what does it do which differs from an assessment by it of the damages in the action? A jury, and a jury only, under the laws of our state, unless otherwise agreed upon by the parties, is the body to whom that duty is confided, and the law which enables a judge to fix and limit a recovery after verdict would, as it seems to me, apply equally as well to a case before verdict. In either, the court, and' not the jury, assess the damages, and upon what principle it may do so, "is not to my mind clear. = If the verdict is so excessive as to justify the conclusion that it is the result of partiality, prejudice or corruption, it should be set aside, and a new jury should, in my opinion, assess the damages. When there is no assessment by a jury (for a pretended one founded not upon an honest ascertainment and computation of loss, but resulting from spite or malice against the defendant, or from a desire to favor the plaintiff, is none in fact) the court ought not to ascertain and declare a result, the right to do which has been wisely committed to another body. Without formally deciding that the judiciary is without power to reduce the amount of a verdict in an action for a personal injury, a conclusion which is against precedents established by wise and upright judges, still for the reasons indicated, the exercise of such a power, which must depend upon discretion, would not now be assumed if the conclusion, as declared by the jury, could not be upheld.
It was strenuously argued by the learned counsel for the
The result, then, of our examination is, that both on reason and precedent the application for a new trial, upon the ground of the excessiveness of the damages, must be denied.
The defendant, however, also claims that a new trial should be granted, because, since the one which was had, he has found a witness who was present at the accident who will-testify-that the plaintiff did not cross the defendant’s railroad at the regular crossing, but to the south thereof. Evidence of the same character was given upon the former trial, and this would, therefore, be cumulative. • For this reason, so
The alleged declarations of jurors as to the grounds of their verdict, of course, cannot be received to impeach it. The affidavits of the jurors themselves could not be received for that purpose, and much less their unsworn statements made to a third person. Verdicts can never be made dependent upon the foolish or wicked after-statements of jurors in regard thereto. If such a rule should be adopted, it is apparent that no verdict could stand. It is due, however, to the jurors in this cause to state that their affidavits satisfy me that no statements were made by them of the character which the defendant claims.
The alleged misconduct of one of the jurors remains to be considered. On the second day of February last, this cause being on trial, and the jury having been discharged until the following Monday (February fifth), Thaddeus Pomeroy, one of the jurors, being about twelve miles from home, and having failed to obtain any other equally comfortable opportunity to reach his residence, asked the plaintiff, who had to go for a. number of miles in the same direction, for permission to ride with him. To this the plaintiff consented. The sleigh had three seats, and the juror sat upon the back seat with Mr. Luman Stanton, one of plaintiff’s witnesses. The plaintiff sat upon the front seat, and it is abundantly shown that nothing whatever concerning the cause upon trial was spoken of or discussed, nor were any words exchanged between the juror and the plaintiff, except when the juror left the sleigh at the point where their routes homeward diverged, the juror thanked the plaintiff for kindness. Before the close of the trial, the juror reported what he had done to the court, and the fact was known to the defendant’s counsel, who made no objection to the juror for this reason. _ It is now, however, claimed that the verdict should be set aside for this cause.
When, however, the court is satisfied that there has been no attempt by the successful party to unduly influence a juror, either by conversation, or by placing him under obligations, and that his action has not in fact been improperly influenced, then, even though the act may have been indiscreet, the court will not disturb the verdict.
Hilton agt. Southwick (17 Maine, 303) fully covers,- and more than covers the case before us. On a Saturday afternoon, after the trial had been commenced, one of the jurors rode home with the plaintiff, who was the prevailing party, in his wagon. “ It also appeared, that the same juror before the cause came on for trial, during the term, went home with the son of the plaintiff, who was a witness, and stayed over night with him.” Notwithstanding these facts, the court being satisfied that no attempt had been made to influence the juror, improperly refused to interfere. The court distinguished that case from Cottle agt. Cottle (6 Greenl., 140),- by stating that while in the one just referred to, it appeared that the hospitality extended to the juror was “ done not as
The principle upon which the verdict in Hilton agt. Southwick was sustained —that the act done was not an officious one thrust by the prevailing party upon the juror for the purpose of procuring his good'will, and thus influencing action, but it was the result of neighborly courtesy and kindness, without any evil intent whatever, is not only sound in reason, but it and similar reasons have frequently guided and controlled the judgments of courts. A detailed examination of the eases will unnecessarily lengthen this opinion, and a simple reference to them is only made (See Hadley agt. Cole, 30 Maine, 9 ; Martin agt. Mitchel, 28 Georgia, 382; Shea agt. Lawrence, 1 Allen, 167; White agt. Wood, 8 Cushing, 413; Jones agt. Vail, 30 N. J., 135; Eakin agt. Morris Canal and Banking Co., 24 id., 538; Sexton agt. Selieverre, 4 Cole, 11; Morris agt. Vivian, 10 Mees, & Welsby, 137).
The fact that the juror rode home with the plaintiff was also known to the counsel for the defendant before the close of the trial, and whilst the defendant would not, perhaps, be precluded from raising any objection founded upon an improper attempt to influence, which was then unknown, yet the objection based upon the mere ride with the plaintiff, because not. then made, must be deemed to have been waived (Fessenden agt. Sager, 53 Maine, 531; State agt. Daniels, 44 N. H., 383; Fox agt. Hazelton, 15 Pick., 375; Hallock agt. Franklin, 2 Met. 560; Martin agt. Sidwell, 36 Georgia, 332).
Before closing this opinion, so far as it disposes of the motion for a new trial, it is proper to state that the jury in this cause was selected with great care, each one being carefully examined. Their answers and appearance showed them to be men of more than average character and intelligence. Nothing occurred upon the trial to cause the-court to suspect their impartiality. When such a jury, after a careful hearing
A single question remains to be disposed of, and that is, the allowance to the plaintiff for costs. Without formally deciding that the verdict is an unusually large one, it is apparent that the amount thereof will reasonably indemnify the plaintiff for-his costs-and expenses in seeking redress. It is also true, however, that the trial of this causé, as well as the resistance of this motion, must have subjected him to a heavy expenditure, and a good deal of labor. The order for allowance will, under the circumstances mentioned, be modified so as to award the plaintiff two and one half per cent, instead of five per cent, upon the verdict.