187 P. 443 | Cal. Ct. App. | 1919
This is an appeal from an order granting a motion for a new trial. The action was one for personal injuries suffered by the plaintiff by reason of a collision between a motorcycle, on which the plaintiff was riding, and an automobile being driven by the defendant. The verdict of the jury was for the defendant. A motion for a new trial was made upon six grounds. The order granting the motion *268
was upon four grounds. [1] The first of these grounds is stated to be: "Irregularity of jurors in examining motorcycle out of court." The facts in relation to this incident, as they appear from the affidavit of Nora Tunmore, the wife of the plaintiff, and a witness in the case, are that during a recess of the court and before the introduction in evidence of the motorcycle upon which the plaintiff was riding at the time of the accident, two jurymen carefully examined the motorcycle, and its various parts, and in discussing the said motorcycle at the time of this examination, one of said jurymen stated to the other that it was impossible for the plaintiff's wife to have seen the speedometer from where she was sitting on the rear seat at the time of the accident. It also appears from the affidavits of this witness and of the plaintiff that at the time the motorcycle was examined by the said jurymen the speedometer was not in the same position that it had occupied at the time of the accident — but that it had become loosened and had slipped out of position by reason of the force of the impact of the automobile and the motorcycle at the time of the accident. It appears from the affidavit of one of the attorneys for the plaintiff and from an examination of the record that no evidence was introduced upon the question of the position of the speedometer prior to the time of the collision. In examining the motorcycle during a recess of court for the purpose of ascertaining whether or not the plaintiff's wife could have seen the speedometer from where she was sitting, the jury was not only taking evidence out of court without the knowledge of the parties, but was taking evidence along new lines which the plaintiff had no opportunity to explain or refute. It is said in the case of Higgins v. Los Angeles Gas Electric Co.,
[2] While it is true, of course, as contended by counsel for the respondent, that a mere irregularity which does not affect the substantial rights of the other party or prevent him from having a fair trial does not justify the granting of a new trial, the question as to whether the action of the jury under all the circumstances materially affected plaintiff's substantial rights and prevented him from having a fair trial was peculiarly one that was addressed to the discretion of the trial court. As was stated in the case of Piercy v. Piercy,
The respondent argues that the affidavits of the jurors may not be considered by the court upon such an irregularity in their conduct. A discussion of that question becomes unnecessary here. We have stated the facts as they appear in the affidavits of the plaintiff and his wife without regard to affidavits of any of the jurors.
[3] The argument of the respondent based upon the allegations of the counter-affidavits cannot be urged here, because the determination of the court upon conflicting affidavits of matters alleged in said affidavits is conclusive here. (Barrett
v. Graham,
[4] It has been repeatedly held that the action of the trial court in granting a new trial will not be disturbed upon appeal if there is a reasonable or fairly debatable justification for its action. (Harrison v. Sutter Street Ry. Co.,
The order appealed from is affirmed.
Brittain, J., and Nourse, J., concurred.