| Ill. App. Ct. | May 8, 1899
delivered the opinion of the court.
Appellant claims, first, that it did not have a fair trial by an impartial jury; second, that a verdict should have been directed for appellant because of appellee’s contributory negligence; third, that the verdict is against the law and the evidence and the weight of the evidence; fourth, that there was error in the court’s rulings on instructions. First. That an illiterate juror was accepted on the panel, is no doubt the fault of the jury commission, court and counsel. Appellant was entitled, under the law, to twelve jurors “ well informed,” but if its counsel failed to secure such a jury by presuming that the jury commission had • done its duty, and by failing to insist on his legal rights before the court, to question each juror as to his qualifications, appellant must abide the result. As to the prejudiced juror, a different question is presented. In answer to well directed questions of counsel, the juror testified that he knew no reason that would make him unfair, and' that he was not prejudiced “ against any of the parties or counsel.” His conduct in the jury room, which is not denied, shows these answers to have been untrue. It is true, as a general rule, that the affidavit of a juror can not be used for the purpose of impeaching the verdict, or in other words, “ to question the manner by which he arrived at his verdict.” (Smith v. Smith, 169 Ill. 623" date_filed="1897-11-08" court="Ill." case_name="Smith v. Smith">169 Ill. 623, and cases cited). But we see no good reason why the aifidavits of one’s fellow-juror may not be looked to to show that he swore untruthfully on his voir dire, and was therefore a prejudiced and disqualified juror. Affidavits of jurors may be used to show they never consented to the verdict. Smith v. Eames, 3 Scam. 80.
It can not be that our jurisprudence will leave litigants at the mercy of an unfair, prejudiced and even revengeful juror, because such unfairness and prejudice are concealed by perjury, until the privacy of the jury room is reached, when for the first time, it develops under the belief, no doubt, that the jury’s deliberations can not be revealed for any purpose. Eor this reason alone, and especially in view of the evidence bearing on appellee’s case, appellant should have been awarded a new trial.
2d. It is conceded that' there was evidence to be submitted to the jury as to appellant’s negligence, and we ar¿ of opinion, after careful consideration of the evidence bear-on appellee’s contributory negligence, that it is such, when all the circumstances in evidence are considered; it can not be said, as matter of law, he did not exercise ordinary care for his own safety. He says that he looked in the direction from which appellant’s train was approaching, and did not see it, and one of his witnesses says appellee looked in that direction. Even if he did not look, it has been held that would not per se be contributory negligence. C. & N. W. Ry. Co. v. Hansen, 166 Ill. 623" date_filed="1897-05-11" court="Ill." case_name="Chicago & Northwestern Railway Co. v. Hansen">166 Ill. 623-8, and cases cited; N. C. St. R. R. Co. v. Nelson, 79 Ill. App. 229" date_filed="1898-12-12" court="Ill. App. Ct." case_name="North Chicago Street Railroad v. Nelson">79 Ill. App. 229; W. C. St. R. R. Co. v. McCallum, 169 Ill. 240" date_filed="1897-11-08" court="Ill." case_name="West Chicago Street Railroad v. McCallum">169 Ill. 240-4; Pullman P. C. Co. v. Connell, 74 Ill. App. 447" date_filed="1898-03-03" court="Ill. App. Ct." case_name="Pullman Palace Car Co. v. Connell">74 Ill. App. 447-52.
We therefore are of opinion the learned trial judge did not err in submitting the case to the jury.
3d. For the same reasons last above stated, the verdict is not against the law and the evidence, unless it be because it is against the clear weight of the evidence: As to whether the verdict is against the weight of the evidence, it is unnecessary for us to decide, as there must be a reversal for the reason stated.
4th. We have examined the instructions given, modified and given, and those refused, but find no reversible error in the court’s rulings in this regard. It seems unnecessary to consider in detail the objections of counsel thereto.
The judgment is reversed and the cause remanded.