35 F. 649 | U.S. Circuit Court for the District of Minnesota | 1888
This case was tried at the last term of this court, before Judge Nelson and a jury, and a nxotioix for a ixew tidal was argued before me on a bill of exceptions. The case involved the same facts presented in a case just tried at this term, whei’e at a crossing of the Chicago, Milwaukee & St Paul Railway and of the Minneapolis & St. Louis Railway tivo trains collided, and the plaintiff, a passenger on the Milwaukee train, was injured. I always decline to hear a motion for a new trial in a case tried before another judge, unless the case stands upon some question of law sent by that judge to be heard here. Motions for new trials are simply appeals to the discretion of the court, and are not matters of right to be claimed by the defeated party. It is clear that the trial judge better than any one else can determine whether substantial justice has been done, and should pass upon such a motion; but in his absence the motion was argued before me, and I said to counsel at the time that I should wait until I heard the facts to be developed in the approaching trial before determining this motion. I have heard the facts as thus disclosed, axxd, whether or no there was any negligence on the part of the Milwaukee engineer, it is very clear to my mind that thei’e was culpable negligence on the part of the Minneapolis &St. Louis exxgineer, for notwithstanding his declaratioixs, and the testimony of one or two others to the same import, that he stopped his train before he came to the stop-board, it is very evident to me that he did xxot do so; that he approached that crossing without stopping, and without putting his train so far under control that he could stop after he saw the approaching Milwaukee train. So that, upon the facts, I am very clear that the Minneapolis & St Louis road was chai’geable with negligence in that collisioxx, independent of the question whether the Milwaukee company was also chargeable with negligence. Under those circumstances, unless on the trial there was some substantial error, it is my duty to overrule the motion for a new trial.
Some matters are suggested which require a word or two of comment. Two affidavits.were filed charging misconduct on the part of the jury," one, an affidavit of a juror that a verdict was reached iix pursuance of an agreement that each juror should write down the amount which he thought the plaintiff should receive, and, after adding them together and dividing by 12, that the amount so reached should be the verdict. Of course, if a verdict is reached in pursuance of an agreement to abide by the result of such an addition and division, it is misconduct such as would vitiate the verdict. But it is also true that it is not improper, and is common in matters of this kind, where the amount does not rest upon any fixed rule, but depends upon the discretion of the jury, for each juror to put down the amount which he thinks the plaintiff ought to receive, and the sum of the amounts being divided by twelve places before the jury a basis for further discussion and agreement; and when that is all that is doxxe, such attempt to reach concord and agreement does not vitiate the verdict. While the affidavit of this juror is to the effect that the verdict ivas obtained under such an agreement to abide by the result, another affidavit, and the papers which were found in the jury-room,
Another matter was brought up, and that is the amount of the verdict, §8,000. It is enough to say upon that, that the full testimony as to the extent and character of the injuries is not preserved in the bill of exceptions, and therefore it is impossible for me to say that the verdict was not a satisiactory and just response to the testimony: It is also objected that testimony was permitted to bo introduced, and that the court called the attention of the jury in estimating the amount of the verdict to the fact that the plaintiff was a minister and had been receiving as compensation for his services from $1,000 to $1,800 a year theretofore; and it is claimed that that was a matter of special damages which should have been separately and distinctly alleged. It is alleged in the petition that he was a minister, and also engaged in other avocations at different times, and that by the injury he was prevented from the proper prosecution of Ills avocations. The court did not tell the jury to multiply the plaintiff’s salary by a number of years, and award him such sum; but the testimony being, as I think, properly admitted under the pleadings, it was proper to call the attention of the jury to it in the charge, to be considered by them in determining what was due compensation.
There are two or there other matters in which perhaps the trial judge made a mistake. For instance, he permitted one witness to testify as to a statement made by the conductor of the Minneapolis & St. Louis train after the accident. True, it was hut a few moments after, but I am inclined to think it was not quite near enough to be received as a pari of thp res gestee, and it was not made by one who had charge of the movement of the train. In one or two other matters of a similar nature, I think a careful examination would satisfy the trial judge, as it has impressed me with the belief, that there was some technical error. But I do not understand that an error of that kind is of itself sufficient to justify a court in setting asido a verdict and putting the parties to the expense and time of another trial, if upon all the facts in the case it is clear that, these errors being excluded, the same verdict will almost necessarily follow. After listening to the facts developed here I do not see how it is reason
