119 Wash. 443 | Wash. | 1922
— This was a suit to recover on account of damages to an auto stage. Judgment was entered on the verdict for the plaintiffs, and the defendants have appealed.
The respondents were the owners of the stage, and the appellants were the owners of an automobile which was in the collision. The respondent Fred Henslin was driving the stage, and the appellant J. Carlton Pratt was driving the automobile. The collision occurred within the intersection of A street and Puyallup avenue, in the city of Tacoma. The automobile was going north on A street and the stage was going west on Puyallup avenue. The night of the accident was dark and rainy and the pavement was slippery. When the driver of the stage saw that a collision was imminent, he turned his car considerably to the right, and at the same time the driver of the automobile pulled his car over towards the left, so that the collision occurred at the northwest comer of the intersection. A man by the name of Harper was riding in the front seat of the automobile, and was called as a witness for the appellants. Among other things, he testified that, if the driver of the stage had veered to the left instead of to the right, the collision would have been avoided. In support of their motion for a new trial, the appellants presented the affidavits of two of the jurors to the effect that they did not hear Harper’s
Practically all the courts hold that, ‘f the facts or things described in the affidavits of jurors in support of the motion for a new trial inhere in the verdict, they will not be considered. The rule is plain, but the application of it to individual cases is more difficult.
• In the case of State v. Parker, 25 Wash. 405, 65 Pac. 776, one of the jurors made an affidavit in support of a motion for new trial to the effect that another juror had announced in consultation that he knew the defendant well, and that he had been implicated in certain other criminal matters, and belonged to a gang of criminals. Held, that the affidavit should be considered, and that the alleged facts therein stated did not inhere in the verdict.
In the case of Marvin v. Yates, 26 Wash. 50, 66 Pac. 131, the court held that an affidavit of a juror which stated that the jury reached its verdict by a certain method of calculation would not be considered in support of a motion for a new trial, because the alleged misconduct inhered in the verdict, and the jurors could not be heard to impeach their verdict.
In State v. Lorenzy, 59 Wash. 308, 109 Pac. 1064, Ann. Cas. 1912B 153, an affidavit of one of the jurors, made in support of a motion for a new trial, to the effect that another juror had claimed, during the deliberations, that he knew a certain place was a house of prostitution, should be considered by the court because it does not inhere in the verdict, the court saying that jurors cannot make themselves impeaching witnesses on questions of fact.
In the case of Maryland Casualty Co. v. Seattle Electric Co., 75 Wash. 430, 134 Pac. 1097, it appeared that one of the jurors, without the consent of the court, had, during the trial, visited thé place of accident, and during the deliberations of the jury gave them the advantage of the knowledge she had thus obtained. The court- granted a new trial on this account.
In the case of State v. Gay, 82 Wash. 423, 144 Pac. 711, it was held that a new trial for misconduct of the jury would not be granted upon the affidavit of a juror that he and others did not believe in the guilt of the accused, but consented to a verdict of guilty under the belief that the court, upon the recommendation of the jury, would give the accused a short jail sentence. The court held that the facts recited in the affidavit inhered in the verdict, and said:
“But few verdicts are reached in which some juryman does not yield in some degree his opinions and convictions to the opinions and convictions of others. And when he does so, even in criminal cases, it is to*447 the interest of the public that he be not permitted thereafter to gainsay his act.”
In the case of Lindquist v. Pacific Coast Coal Co., 86 Wash. 408, 150 Pac. 619, some of the jurors who did not concur in the verdict made affidavits in support of a motion for a new trial in which they stated that, during the consideration of the case, one of them advised the jury of certain facts concerning the parties to the action, which facts had not appeared in the testimony. Held, that the trial court properly denied a new trial because the facts inhered in the verdict.
In the case of Wagoner v. Warn, 88 Wash. 688, 153 Pac. 1072, it was held that an affidavit made by one of the jurors to the effect that a verdict was forced by other jurors holding out and refusing to concur recited facts inhering in the verdict and could not be considered.
In the case of State v. Lyle, 105 Wash. 435, 178 Pac. 468, a defendant, who was a druggist, was charged with an unlawful sale of intoxicating liquor, and one page of the register which he kept showing such sale was admitted in evidence, but the whole register was sent to the jury. There was an affidavit of some of the jurors in support of a motion for a new trial, to the effect that, in deliberating on their verdict, they read many pages of the register, and found many other sales by defendant, and that such influenced their verdict. It was held these affidavits could not be considered because they impeached the jury’s verdict.
We have not undertaken to review all of our decisions on this question; the foregoing will show the general trend. It is our view that the trial court was right in'refusing to consider the affidavits of the jurors in this case, for the reason that the facts recited in
The appellants further argue that their motion for judgment notwithstanding the verdict should have been granted because the evidence not only failed to show any negligence on their part, but, on the contrary, did show such negligence on the part of the driver of the stage as materially contributed to the damages sued for. There is an ordinance in the city of Tacoma which provides that the vehicle first within the intersection of streets has the right of way, There was some testimony on behalf of the plaintiffs that the stage came into the intersection in question ahead of appellants’ car. If such were the fact, it was ordinarily the duty of the appellants to give the stage the
We are also satisfied from the reading of the testimony that the court properly submitted to the jury the question of negligence on the part of the driver of the stage. There was testimony from which the jury could have found that the stage was being driven much slower than the automobile; that it entered the intersection ahead of the automobile; that the automobile could have avoided the accident by turning west on Puyallup avenue instead of continuing north on A street, and that, when the stage entered the intersection, its driver looked to his left to see if there was any car coming from the south on A street. Such being the situation, the court was bound to submit the case to the jury.
Judgment affirmed.
Parker, C. J., Fullerton, Mitchell, and Tolman, JJ., concur.