70 Minn. 5 | Minn. | 1897
The only question involved in this appeal is whether the trial court erred in denying the plaintiff’s motion for a new trial on the ground of the alleged misconduct of two of the jurors in visiting the locus in quo.
The plaintiff’s minor son was injured, on the evening of June 10, 1896, at the intersection of University avenue and Marion street in the city of St. Paul. He was knocked down by a bicycle rider and thrown partly upon the street-car tracks, and was powerless to move. While he was in this position he was struck and injured by a street car, by the negligence of the defendant, as the plaintiff claims. This action was brought to recover the damages sustained by the boy by reason of such negligence.
Upon the trial there were at least two material questions upon which there was a sharp conflict in the evidence, which was such as to justify a finding in favor of either party on each of the questions. They were: (1) How far away from the boy was the car when he was thrown upon the track? (2) At what rate of speed was the car running?
The motion for a new trial was based upon the affidavits of Dr. Nippert and two jurors, J. Adam Bede, the foreman, and M. T. Haberman. The affidavit of Dr. Mppert was to the effect that at the request of juror Haberman he drove him to the place of the accident, that the juror stated that he wished to personally observe the locality and neighborhood and to note certain distances, and that he did so do. This juror in his affidavit admitted that he visited the locus in quo, that he might determine by his own personal observations what were the opportunities of Miss Smith and Mr. Du Bois, witnesses who had then .testifled on behalf of the defendant, for ob
“During the trial of said case and before it was submitted to the jury for their deliberation, and during the trial thereof and before the closing arguments or charge of the court therein, affiant by himself and without the consent or knowledge of any of the attorneys or parties to said action, visited the scene of the accident for which recovery was sought in said action for the purpose of inspecting the locality and drew a map of the locality, which, as he remembers, he showed and explained to his fellow jurors, and also acquainted them with the fact of his visit to the premises and the impressions derived therefrom; that affiant made said investigation that he might the better understand and weigh the testimony given by the witnesses, and especially that he might the more justly determine, by the amount of settlement or density of population along the line of said railway in that vicinity, what would be a reasonable or lawful rate of speed for street cars to maintain at that point.”
Each of the jurors stated that he was not aware that it was improper for him so to examine the locality, and in their rebutting affidavits each declares that such examination had no influence upon his mind in arriving at the verdict rendered, and stated facts tending in some measure to support the conclusion. This examination was made by the jurors during the progress of the trial, without the knowledge of the court or of either of the parties. It is not claimed that the defendant was guilty of any misconduct in the premises.
Assuming that the affidavits of the jurors, so far as they related to their action outside of the jury room, "were admissible, we have the question whether their action was such misconduct as to require the setting aside of the verdict.
Not every unauthorized view of the locus in quo will require the setting aside of a verdict. Considerations of practical justice forbid it! It would be an injustice to deprive an innocent party of his verdict simply because there was a casual inspection of the premises by some of the jurors or because they were familiar with them. If verdicts were set aside for such reasons there would be no reasonable limits to litigation, especially in cities where the opportunities are great for jurors personally to view the locality of an accident under consideration. A caution in such cases by the trial court to
But it is urged by defendant that it is perfectly clear from the record that the result was not affected by the misconduct of the jurors, because the map of the place where the accident occurred, introduced by the defendant and. admitted to be correct, showed everything which an actual view of the place could disclose. The record does not sustain this contention. The map was not introduced in evidence until near the close of the evidence and after both jurors had examined the place of the accident. They obtained for
This brings us to the question of the admissibility of the affidavits of the jurors. It is the settled law of this state that the affidavits of jurors as to what transpired in the jury room cannot be received to impeach their verdict; hence so much of the affidavits of the jurors as relates to what took place in the jury room we have not considered. But the rule of public policy which excludes the testimony of jurors to impeach their verdict extends only to matters taking place during their retirement, and it is competent to impeach the verdict as to matters occurring outside of the jury room during the progress of the trial. 2 Thompson, Trials, § 2619; Peppercorn v. City, 89 Wis. 38; Heffron v. Gallupe, 55 Me. 563; Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50. The affidavits of the two jurors, to the extent we have considered them, were competent.
The order appealed from must be reversed, and a new trial granted.
So ordered.