McGloin v. Metropolitan Street Railway Co.

Ingraham, J.: We think that there was evidence that justified the submission of this case to the jury and that no error was committed upon the trial by the learned trial judge that would justify á reversal of the judgment. The only serious question presented is as to the application for a new trial because of the occurrence which happened during the pendency of the trial. That question is presented upon an application of the defendant to have the case withdrawn from the consideration of the jury, on the ground that after the adjournment of the court on the first day of the trial, and in the presence of one or more of the jurors, the plaintiff became prostrated in the court room, when he was attended by physicians. This attack lasted about twenty minutes, when plaintiff was removed from the court room. There is no allegation or proof that this attack was simulated, ór that fraud or deception was practiced by the plaintiff; nor did the plaintiff voluntarily or intentionally exhibit in the presence of any member of the jury- any condition which could affect their verdict. His condition was evidently brought on by the excitement attending the trial in his weak physical condition. There is evidence that "his physical condition at the trial was caused by the injury occasioned by this accident. If this attack had happened during the session of the court, there being no suspicion of a simulated attack, bad faith or fraud, there would be nothing to justify this court on appeal in granting a new trial. The fact that the attack came on after the court had adjourned and before all of the jurors had left the room should not, we think, subject the plaintiff to the penalty of losing the verdict which had been obtained as a result óf a fair trial at which all the rights of the defendant had been fully preserved. After this occurrence had been called to the attention of the court, the court asked the jury, “ whether there is any juror who by reason of what he saw has been so affected that he cannot decide this case just the same as if he had not seen what he did,” to which the eleventh juror, who appears to have been the juror who was present and saw the occurrence, stated to the -court that he would not consider it, and no other juror having indicated that he either saw the occurrence or would be affected by it, the court stated, “ I therefore assume, gentlemen,. that you can decide the case just as though none of you had seen this occurrence, and [74] if I am wrong about that, will any of you rise who knows it to be so,” and no juror arose. After the verdict had been rendered, additional affidavits were submitted to the court and a motion to set aside the verdict and for a new trial was made and denied. It is quite probable that we should not have interfered- with the conclusion of the trial justice if he had determined to. set aside the verdict, but, as before stated, there is nothing to justify a conclusion that the plaintiff voluntarily exposed himself to this attack in the presence of a juror. In all of the cases relied upon by counsel for the defendant in which verdicts have been set aside the action of the court was based upon some voluntary act of the plaintiff, which either simulated conditions that did not exist or voluntarily submitting something to the jury which could influence their verdict. None of those conditions existed in this case. My conclusion, though with some, hesitation, is that we are not justified in reversing the. action of the trial court in refusing to discharge the jury from a consideration of the case, or in refusing to grant a new trial after the rendition of the verdict. The jury found a verdict for $22,000'. The defendant moved for a new trial -on the ground that this verdict was excessive, but, upon the plaintiff’s stipulating to reduce it to $.17,000, the court denied the motion. While this verdict was large, we do not think that the amount to which it was. reduced by the stipulation of the plaintiff was so excessive as to justify us in granting a new trial: There is no doubt but that the plaintiff has been very seriously injured by the accident. The complaint expressly alleged, that the injury caused the plaintiff intense pain and suffering; that he is still suffering greatly from said injuries and believes that he will be an invalid and cripple the balance of his life. This allegation was certainly sufficient to justify the introduction of the evidence of permanent injury, and, upon the evidence, we cannot say that the verdict, as allowed to stand, was .excessive. Upon the whole case we do not think that we would be justified in granting a new trial, and the judgment appealed from must be affirmed, with- costs. O’Brien and Hatch, JJ., concurred; Van Brunt, P: J., and McLaughlin, J., dissented.