66 P. 672 | Cal. | 1901
Plaintiff sued to recover damages for injuries sustained by him, through the derailment of one of defendant's electric cars moving upon a street in the city of Oakland. The cause was tried before a jury, and the verdict and judgment were for plaintiff. In due time defendant moved for a new trial, upon the grounds of misconduct of the jury, insufficiency of the evidence, and errors of law occurring at the trial. The court granted the motion for a new trial upon the sole ground of the misconduct of juror Long, stating further, that all other grounds of the motion had been examined and found insufficient. Under this order we will not here review the evidence for a redetermination of the question of its sufficiency or insufficiency. (Kauffman v. Maier,
As to the issues joined by the pleadings, saving the issue upon the nature, character, and extent of plaintiff's injury, reference may be made to the case of Johnsen v. Oakland etc.Electric Ry. Co.,
So much by way of preliminary to an understanding of the matters relating to the alleged misconduct of the juror Long. In support of this ground of motion, defendant offered two affidavits, — the one by Frank Putnam, a conductor upon one of the cars of defendant company; the other by C. Gustafson, superintendent of the defendant company. The latter affidavit the court refused to admit in evidence. Gustafson declares that after the verdict in the case, and after the discharge of the jury, he had a conversation with the juror Long, in which Long told him that during the trial of the cause he had visited the place of the accident, and made an examination of the track and rails, from which examination he became reasonably certain of the way in which the accident had happened; that by reason of this visit he was the only one of the jurors familiar with the scene of the accident, and thereby became able to show, and did show, his fellow-jurors, in their deliberations, how, in his judgment, the accident occurred. This affidavit was properly refused admission in evidence. While it is not, in terms, an affidavit by a juror impeaching his own verdict, it is an affidavit of admissions made by a juror to the same effect. If the juror himself would not have been permitted to make affidavit directly to these facts, clearly the affidavit by another, of his declarations and admissions, offered for the same purpose, would be equally inadmissible. What the juror could not do directly could not thus indirectly be effectuated. However the rule may be in other states, it is settled in this beyond controversy that a juror may impeach his own verdict upon no other ground than that designated by the code. (Code Civ. Proc., sec. 657, subd. 2. See Boyce v.California Stage Co.,
It is sought by respondent, upon this motion, to make a *498
distinction between the misconduct of a juror before retiring, and the misconduct of a juror during retirement; but to this it may be said, in the language of Boyce v. California Stage Co.,
There is left, then, for consideration the affidavit of Putnam alone. Putnam swears that during the trial of the cause, while passing with his car at the scene of the accident, he saw Long "standing between the tracks, watching the car and observing its progress"; also, that "he seemed to be examining the ground and the south track. . . . He made examination of the rails of the company in the locality of the Lake View Cottage, and seemed to be trying to understand their construction and position." This affidavit is not controverted. The foregoing is all of the evidence upon misconduct. While the exercise of a liberal discretion in the granting of new trials is recognized, it does not follow that an order must always be upheld, or will be upheld, where an examination of the record discloses that the misconduct was of such trifling nature that it could not, in the nature of things, have been prejudicial to the moving party. Where it appears that the fairness of the trial has been in no way affected by such impropriety, the verdict will not be disturbed. (State v. Allen, 89 Iowa, 49.) Where the locus itself is in dispute, or where its exact condition has an essential bearing upon the controversy, it may well be that a verdict should be set aside upon proof that a juror improperly acquired knowledge of that locus, or its condition, by visiting the place, but, as was said in Bowman v. Western Furniture Mfg. Co., 96 Iowa, 188, where there is no controversy as to the locality inspected, and no probability of prejudice resulting from the inspection, the verdict should not be disturbed. Here, the place of the accident was not disputed. *499 The cause of the accident, as alleged in the complaint, and upon proof of which alone plaintiff was entitled to recover, was, that the car was so "negligently and carelessly maintained, operated, and managed that, while moving at great and unlawful speed, it ran off the track of said railroad." That it did run off the track is not disputed, the defense against this charge of negligence being that the accident occurred by reason of a latent defect in a wheel, which could not, by the exercise of due care, have been discovered, and which was not discovered. It is not charged in the complaint that the car left the track by reason of defective rails or road-bed, and we fail to see, therefore, how the affidavit of Putnam, which amounted to nothing more than that he saw the juror between the tracks, seemingly examining them, is a sufficient showing to justify a new trial.
In the instructions complained of, the court charged the jury as to the responsibility of defendant company for latent defects in the wheel. It is said by Shearman and Redfield, in their work on Negligence (sec. 497): "Whether he [defendant] is responsible for defects which could not have been thus discovered after the vehicle came into his possession, but could have been discovered by the use of such tests during the process of manufacture, is a question upon which there is a difference of opinion. In New York it has been distinctly held that he is. It was so held in England many years ago, but in later cases the question has been purposely left open. In Massachusetts and Scotland, it is held that he is not." Of the New York cases bearing upon this question may be cited: Hegeman v. Western R.R. Co.,
We perceive no error in the rulings of the court complained of in admitting or rejecting evidence.
For the foregoing reasons the order appealed from granting defendant a new trial is reversed.
Temple, J., Harrison, J., Garoutte, J., and Van Dyke, J., concurred.
Rehearing denied.