90 Ill. App. 30 | Ill. App. Ct. | 1900
delivered the opinion of the court.
Appellant’s counsel contend that the verdict is manifestly contrary to the preponderance of the evidence. As the case must be remanded for another trial, we do not deem it necessary or expedient to comment on the evidence further than to say that the evidence bearing on the question whether or not the accident was occasioned by appellant’s negligence, is so conflicting and contradictory that, had the verdict been for the appellant, we would not be warranted in setting it aside on the ground of its being against the weight of evidence.
We regard the question whether the court erred in refusing to discharge the jury, or to grant a new trial, on account of the facts alleged in the affidavits set out in the preceding statement, the most serious presented by the record. It seems hardly necessary to say that the newspaper articles set forth in the affidavits, if seen by any juror, were eminently calculated to prejudice him against the appellant. If to prejudice the minds of the jurors against the appellant had been the intention, the articles could not have been more ingeniously devised to effect that purpose. The article of March 17th, published the next morning after the impaneling of the jury, states that the jury on the former trial had been bribed; that two of the jurors had so confessed to the State’s attorney; that one of them was to receive $100 and another $75, and that they were both under bonds to appear at court. The article contains the name and residence of each juror, purports to describe the injuries of appellee, and states that the case is to be given another chance for “ justice.” The publication in the Chicago Daily News of March 17, 1899, describes appellee’s injuries and refers to the jury as “ the twelve men who are to decide whether the street railway company owning the car which mutilated the child shall make monetary recompense for her injuries.” The article also refers to bribery of jurors on the former trial.
The article published in the Chicago Record, March 22, 1899, commenting on the evidence of the witnesses for appellant, states : “ On cross-examination it was revealed that most of the witnesses had been paid by the company for loss of time due to the suit, and that several days had been thus compensated for in nearly every case; ” also, that an attempt of appellant to break down the testimony of Olson, a witness for appellee, had met with a set-back; and that it appeared that one of appellant’s principal witnesses had boarded with Mrs. Grenell, appellee’s mother, a number of months, and left suddenly without pajdng his bill.
In the article of March 23, 1899, in the Chicago Record, this appears:
“ The declaration made by several of the other witnesses for the defense, that the child ran from behind a south-bound car directly in front of the north-bound one, was also repeated by the witness. Several persons swore that these circumstances had attended the accident, but on cross-examination it was developed that they had been paid or expected to be paid by the company for testifying.”
Mr. Prentice, in his affidavit, deposed that he saw a copy of the newspaper containing the article in the possession of Janecke, one of the jurors.
The article published in the Chicago Becord on the morning of March 24, 1899, after the argument of counsel had closed, and before the jury had been instructed, states that “ it was the universal opinion of the spectators who had followed the trial, that a heavy verdict would be the result of the plea.” referring to Judge Wing’s argument, and contains the following:
“The fact that the witnesses for the plaintiff nearly all admitted having spent several days in the office of Alex. Sullivan, and having been paid for their time, was made a basis of a general attack by ex-Judge Wing on the methods employed by the company. Glaring discrepancies in the testimony of the witnesses for the defense were brought to the jury’s attention, and the attack of the company on Conductor Olson by trying to prove that he had been discharged, was shown to be due to the fact that Olson was given his choice between quitting the company’s service and testifying according to his wishes. The falsehood of much of the testimony for the defense he said was evident, and he dwelt upon the point with impressive earnestness.”
It appeal's by the affidavit of George W. Kroll, copied in the preceding statement. that he was the bailiff who attended the jury when they retired to the jury room to consider of their verdict, and that he took from juror William B. Janecke a copy of the Chicago Daily Hews of March 23, 1899, and from juror Earl Anderson and another juror copies of the Chicago Becord of March 24, 1899.
The articles, in effect, warned the jury that the eye of the public was on them; that it was expected that in justice to appellee they would give a heavy verdict; that their names and residences were known, and that if they should find for the appellant, they would subject themselves to the suspicion of bribery. The articles also plainly intimated that witnesses for appellant were bribed, or were, for other reasons, not worthy of credit. In short, the probable effect of the articles on the mind of the ordinary juror would be to prejudice him against the appellant and its witnesses, and to intimidate him, and swerve him from an impartial consideration of the case.
The only direct evidence that newspapers containing the articles in question came to the hands of the jurors, is that of Prentice, who deposed that he saw two of the jurors reading the article in the Chicago Record of May 21, 1899, and the newspaper containing that article in the hands of another, and also saw in the possession of juror Janecke a copy of the paper containing the article of March 23, 1899, and the affidavit of bailiff Kroll as to taking from jurors copies of the Chicago Daily News of March 23, 1899, and of the Chicago Record of March 21, 1899.
It has been held in cases like the present, that direct evidence that newspaper articles prejudicial to one of the parties were read by the jurors, or some of them, is not necessary to warrant the granting of a new trial;, that it may be inferred from circumstances that the jury read the articles.
In Meyer v. Cadwalader, 49 Fed. Rep. 32, a new trial was granted solely on the ground of publications .made during the trial of a character to prejudice the jury. The court, in its opinion, says :
“It is idle to say that there is no direct evidence to show that the jury read these articles. They appeared in the daily issues of leading journals and were scattered broadcast over the community. The jury separated at the close of each session of the court, and it is incredible that, going out in the community, they did not read these newspaper publications.”
But in the present case it is not necessary to resort to the presumption indulged in by the court in the case cited. The articles of March 21st, 23d and 24th have been traced to the hands of jurors, and there is positive evidence that two of the jurors read the article of March 21st, and that another had it in his hands. We think it a legitimate inference that the articles of March 23d and March 24th, which were as prejudicial to appellant as any published, were read bx the jurors in whose possession they were found.
That the reading by jurors of newspaper articles prejudicial to one of the parties is cause for a new trial, we regard as well settled. People v. McCoy, 71 Cal. 395; People v. Stokes, 103 Ib. 193; Cartwright v. The State, 71 Miss. 82; Walker et al. v. The State, 37 Tex. 366; Carter v. State, 77 Tenn. (9 Lea) 440; Farrer v. The State, 2 O. St. 54.
In the present case two of the jurors xvere named in Prentice’s affidavit as persons whom he saw reading the article of March 21, 1899, and two from whom the bailiff took the articles of March 23d and March 24th are named in the bailiff’s affidaxdt. Prior to the publications of March 33d and 24th, the jury were instructed by the court to refrain from reading anything in the newspapers about the case. Ho affidavits of jurors were produced denying the reading of the articles in question, although it is familiar law that the affidavits of jurors to sustain their verdict are admissible. We are of opinion that on the affidavits in respect to the articles in question, the court should have granted a new trial.
Appellant’s counsel object to the refusal of the court to strike out the testimony of alleged incompetent witnesses as to the speed of the appellant’s car at the time of the accident, the retention on the panel of a juror named Condon, whose discharge was moved by appellant on the ground, supported by affidavits, that in his examination he made false statements, thereby inducing his acceptance by appellant as a juror, when otherwise he xvould haxm been peremptorily challenged, and the refusal of certain of appellant’s instructions. The question as to the competency of witnesses as to speed, value, etc., rests largely in the discretion of the court, and the witnesses having testified, we find no material error in the refusal of the court to exclude their evidence after their cross-examination. It was for the jury, who heard their evidence, to decide as to its weight and credibility. The question as to the retention of juror Condon on the panel is not likely to arise on another trial, and we do not deem, it necessary now to pass on that question.
The court gave twenty-seven instructions for appellant, fairly and fully instructing the jury as to the law of the case, and we find no material error in the refusal of instructions. No instructions were given on behalf of appellee.
Counsel further object to the exhibition to the jury of appellee’s injured limbs. In this there was no error.
For the reason heretofore stated, the judgment will be reversed and the cause remanded.
