46 Wis. 248 | Wis. | 1879
The question as to what misconduct of a jury is ground for granting a new trial, has been considered by this court several times, and is settled by the adjudications. The rule is, that if the court can see that the misconduct had, or might have had, an effect unfavorable to the party moving for a new trial, the verdict should be set aside. This rule is applicable to civil actions. Jackson v. Smith, 21 Wis., 26. The decisions of this court cited in the brief of counsel for the appellant, lay down the rule in criminal cases, but much of the discussion in the opinions is applicable to civil cases as well.
The use of the map by the jury in their deliberations, and as a part of their deliberations, was entirely unjustifiable. It had not been introduced in evidence; and, had it been, it should not have been taken to the jury room without permission of the court. "Within the rule above stated, the misconduct is fatal to the judgment, if,'without knowledge of the contents of the map, it can justly be said that it might have influenced the verdict. We all know by observation that highways are usually marked on such maps; and if the jury
The question litigated on the trial was, whether the locus m quo, when the defendant obstructed it, was a highway by public user; and on that question the testimony ¡is in conflict. Probably a verdict either way could not be disturbed on the testimony alone. Because we cannot say that the verdict is right notwithstanding the misconduct of the jury, and because we are compelled to say that such misconduct may have influenced the jury to find for the plaintiff, we must hold that the motion for a new trial should have been granted.
By the Gou/rt. — Judgment reversed, and cause remanded for a new trial.