24 A. 470 | R.I. | 1892
This is an action for trespass on the case, to recover damages for the negligence of the defendant corporation in allowing a certain trap-door in the landing of a stairway on the premises occupied in part by the defendant, which said trap-door was used by and under the sole control of the said defendant, to remain open and unguarded, whereby and by reason whereof the plaintiff, while using said stairway, as he lawfully might do, in going to his work in the building where said stairway was located, and while using due care, fell into the hole or opening caused by said trap-door being left open, and was thereby seriously injured. The facts in the case, in so far as the same are necessary *692 to the decision of this petition, are as follows, namely: Before the case was opened to the jury, the defendant's counsel moved the court that the jury be permitted to take a view of the premises where the accident occurred; but this motion, being objected to by the counsel for the plaintiff, was refused.
During the trial there was much conflicting testimony regarding the structure, size, and exact location of the trap-door in question. Dr. Palmer, one of the principal witnesses for the plaintiff, testified that he examined the premises a day or two after the happening of the accident; that he found an entry which was very dark, and also a landing which was very dark; that he could not find any trap-door by feeling with his hands, but by lighting a match he found a trap that was very nicely fitted into the floor by a lip of steel that went around it; that he saw the dimensions of the trap and saw that the plaintiff could have fallen in with one foot upon the firm landing, and the other going down into the pit; that said narrow lip was secured, on the edge, to the trap, and then the trap fitted into the space and supported by this projecting edge, so that walking on it one would never know there was any trap there; that the opening was about two feet long and about a foot wide. Upon being recalled on the second day of the trial, he further testified that he had just visited the premises in question again, in company with the plaintiff; that he found a trap-door 12 by 20 inches in size; that there were two hinges near the end of it, which, owing to the darkness, he had previously mistaken for a "lip;" that he had also learned an additional fact, namely, that there was a double trap-door, a trap-door within a trap-door, and that the entire landing lifts up, and in that landing there is a second trap-door; that by falling into that second trap he could account for the plaintiff's injuries, namely that his body did not have a chance to spread out, but went into a cramped place, and the body was thus cramped.
The defendant called a number of witnesses, who testified that there was no trap-door within a trap-door at said place and never had been; that the whole platform constituted the trap-door, that it was on hinges, and, when open, turns up against the partition the whole width of the stairway; that it was 3 feet 2 inches long and 22 inches wide. After this conflict in the testimony had appeared, *693 the counsel for the defendant requested that in consequence thereof a view of the premises be taken by the jury, in order that they might determine for themselves regarding the question in dispute. This motion was also denied by the court. The jury found a verdict for the plaintiff in the sum of $8,000.
The defendant now petitions for a new trial on the following grounds, viz.: —
First. That the verdict was against the evidence and the weight thereof.
Second. That the damages awarded by the jury were excessive.
Third. Because certain members of the jury, before whom said cause was tried, were guilty of misconduct in this, that, during the progress of said trial and without the consent of the court, and without the knowledge and consent of the petitioner or its attorneys, they did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted.
Fourth. Because certain members of said jury, during the progress of said trial, did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted, without the knowledge or consent of the petitioner or its attorneys, and under such circumstances as to be calculated to lead a jury into error in the determination of said cause.
Fifth. Because, during the progress of said trial, certain members of said jury did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted, without the knowledge or consent of the petitioner or its attorneys, and were thereby misled in matters relating to the evidence in said cause.
In support of the third, fourth, and fifth grounds for a new trial above set forth, all of which may properly be considered together, the defendant offered in evidence a number of affidavits to the effect that, on the last day of the trial of said case to the jury, four or five of the jurors engaged in said trial visited the place where the accident happened, and examined the landing and trap-door in question. These affidavits were made by persons in the employ of the defendant corporation, each of whom testifies to having seen *694 said jurors making said examination. The defendant also offered the affidavits of three of the jurors who sat in said case to the effect that the affiants and two other members of the jury, making five in all, visited the premises where the accident occurred, during said trial, of their own motion, and without the knowledge or consent of either counsel or parties on either side; that the sky was overcast with clouds at the time they visited the premises; that the entry-way was quite dark; that at that time they thought they discovered evidence of there being or having been a trap-door within a trap-door in the landing at the head of the stairs, as testified to by Dr. Palmer in behalf of the plaintiff, and contrary to the testimony given by a number of defendant's witnesses; that two of said jurors have visited said premises since the trial of said case, on a clear day, and carefully examined the landing at the head of the stairs, and find that they were mistaken in their impressions obtained at the time they examined the same during the course of the trial; and that there evidently has been but one trap-door; and that there are no indications of there being or ever having been a trap-door within a trap-door in said landing. It further appears by the affidavit of George S. Ladd, the superintendent and vice-president of the defendant corporation, and by that of Francis Colwell, Esquire, and Walter H. Barney, Esquire, attorneys for the defendant, that at the time of the trial no one of the officers of said company, nor either of its attorneys, was aware that any member of the jury that tried said case had been to view the premises where the accident occurred, which was the subject of the suit, until after the trial was over, and that such visit was wholly without the knowledge or consent of the defendant or either of its attorneys.
The plaintiff objected to the introduction of the affidavits of the jurors above referred to, on the ground that jurors are not allowed to impeach their own verdict. The court admitted these affidavits de bene.
In Tucker v. The Town Council of South Kingstown,
In Perry v. Bailey,
In Winslow v. Morrill,
Petition granted.