Woodbury v. City of Anoka

Gilpillan, C. J. Action for an injury to the person, caused by a loose plank in a plank sidewalk, alleged to have beeom'e and continued loose and dangerous through the negligence of defendant. After a verdict for defendant, plaintiff moved for a new trial on several grounds, including misconduct of two of the jurors, which is the only one we need consider. The injury occurred May 12, 1890. The trial was had September 21, 1891. It appeared clearly enough that the plank was loose and dangerous, and the only real controversy was as to the negligence of the defendant, which depended on notice to it of the condition of the plank, and its neglect to repair. There was no evidence of notice, except as the jury might infer'it from the condition of that part of the sidewalk for a considerable time before the injury, and as to that the evidence was such that the jury could find either way. It appears that during the trial the court denied a request that the jury take a view of that part of the sidewalk. The alleged misconduct of the two jurors consisted in their making an examination notwithstanding the refusal of the court. The affidavits of two persons were presented to prove it, one of whom swore that he saw the two jurors and one Manning, a witness for defendant, at the place where the injury occurred, holding an animated conversation, examining the sidewalk and stringers and spikes and nails, and jumping up and down on the sidewalk, and otherwise testing and examining it, and Manning pointing out different spots and localities upon it, for fully ten minutes. The other person, in his affidavit, stated substantially the same facts, and that he overheard the jurors and Manning, during the examination, frequently using the words “spikes,” “planks,” “sidewalks,” “stringers,” and “sleepers,” though he could not further distinguish what they were talking about. Manning, in his affidavit used in opposition to the motion for a new trial, states that, seeing the two men, and not knowing at the time that they were jurors, he approached them, and said, in substance: “This sidewalk was in pretty good [332] shape the day I saw it, before Woodbury got hurt,” and one of the men said to him, “We are jurymen. We are not allowed to talk,” — and that there was no other conversation between him and them in reference to the sidewalk. His affidavit is evidently evasive, but, for the purposes of the motion, it may be taken to rebut the statements in the affidavits on. the part of plaintiff indicating that he was conversing with the jurors in reference to the sidewalk at that time, beyond the remark above stated; but it did not deny that he and the jurors were there for the length of time, and examining and testing the sidewalk, as stated in the other affidavits. And it is significant that no affidavit of the jurors was produced, and no excuse given for not doing so. So that it must be taken as established that the jurors were doing what plaintiff’s affidavit stated. That was misconduct, and, in view of the fact that the court had refused to let the jury see and examine the sidewalk, it must have been intentional. Misconduct of jurors as a reason for setting aside the verdict was fully considered in Koehler v. Cleary, 23 Minn. 325, and the rule stated that “if it does not appear that the misconduct was occasioned by the prevailing party, or any one in his behalf, and if it does not indicate any improper bias in the jurors’ minds, and the court cannot see that it either had or might have had an effect unfavorable to the party moving for a new trial, the verdict ought not to be set aside,” and that all the moving party can be called on to show is “that the misconduct may have had an effect unfavorable to him.” The party need not show that he was in fact prejudiced. That case concedes that, where the misconduct may have had an effect unfavorable to the defeated party, the other party may be permitted to show that in fact it did not have such effect. But that would have to appear very clearly, — so clearly as to leave no doubt as to the fact. When it may have had an unfavorable effect, it would be unsafe to allow any speculation whether in fact it did or not. There can be no question that what was done by the two jurors may have had an influence on their minds unfavorable to plaintiff. It is manifest, from their making the examination, that they thought that by making it they could learn something proper for them to [333] consider in coming to a verdict. Perhaps they thought they could determine from it whether the witnesses for plaintiff, testifying that at the time of and before the injury the sidewalk was in general bad condition, or the witnesses for defendant, testifying the contrary, were to be believed. It is impossible to say it did not influence their minds against the plaintiff, and because of their misconduct there must be a new trial. Order reversed. (Opinion published 54 N. W. Rep. 187.)