Borden v. St. Louis Southwestern Ry. Co., 85-59

• Decision Date: 12 November 1985
• Docket Number: No. 85-59,85-59
• Citation: 698 S.W.2d 795,287 Ark. 316
• Parties: Clarence BORDEN and Pearl Borden, Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 795

698 S.W.2d 795

287 Ark. 316

Clarence BORDEN and Pearl Borden, Appellants, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellee.

No. 85-59.

Supreme Court of Arkansas.

Nov. 12, 1985.

McDaniel, Gott & Wells by Phillip Wells, Jonesboro, for appellants.

Barrett, Wheatley, Smith & Deacon by J.C. Deacon, Jonesboro, for appellee.

DUDLEY, Justice.

The issue on appeal is whether the trial court abused its discretion in granting a new trial. The trial court did not abuse its discretion.

The central issues at the trial of this truck-train collision case were whether the train whistle had been blown at the proper time and whether the truck driver's view of the train was obstructed. Late in the afternoon of the second day of trial, after both sides had rested, the judge instructed the jury, and then adjourned court until the following morning, when the case was to be submitted to the jury. Included in the instructions was an admonition not to make an independent inquiry or investigation into the facts of the case. Contrary to that admonition, two of the jurors later went to the scene of the accident. The next morning the case was submitted to the jury, and verdicts were returned for the appellants, the truck driver and his wife. After the verdicts, the bailiff gave an affidavit which, in part, provides:

After the jury returned its verdict, and while I was standing near the door by the jury box, Virgil Adkins, the foreman of the jury, said something to me about not wanting to serve on another case like this, and I replied "Yes, they can be confusing." Mr. Adkins then went on to say that he was down there, or went down there, I'm not sure which, and he watched a train approach the crossing and that it didn't blow its whistle until it was about 200 feet from the crossing and then only one time. (Emphasis added.)

Judy Beeson, a trial juror, gave an affidavit which, in part, provides:

About 20 minutes into the jury deliberations, after we had gotten some coffee, etc., we decided to go from juror to juror to get from each their preliminary opinion as to fault. At that time Virgil Adkins and Laura Perkins said they had been out to the scene to satisfy themselves about the view. I got the impression they went separately. I remember Mr. Adkins saying that he pulled up there and tried to see and couldn't. (Emphasis added.)

Janice Cranford, another trial juror, gave an affidavit which provides, in part:

During the deliberations, Virgil Adkins, who served as foreman, and Laura Perkins, one of the jurors, told the jury that they had been to the scene of the crossing accident after court adjourned the day before and made observations. So much was being said, and so many people were talking, I cannot remember everything that they said but I do remember Mr. Adkins saying that the railroad photographs were not representative of the view that Borden had and that the railroad switchbox did block the view of a motorist. (Emphasis supplied.)

Juror Beeson, juror Crawford, and the other eight jurors who did not make an independent investigation of the scene, also gave affidavits stating that the two jurors who visited the scene did not state any facts which were different from the evidence introduced at the trial.

Jurors Adkins and Perkins gave affidavits admitting that they made independent investigations and stating that the extraneous information did not influence their deliberations. After considering all of the affidavits the trial court granted a new trial.

The appellants first contend that the trial court used the wrong standard in granting the new trial. A trial judge is vested with great discretion in acting on a motion for a new trial and will not be reversed on appeal unless there is a manifest abuse of that discretion. In addition, a showing of abuse of that considerable discretion is even more difficult when a new trial has been granted, rather than refused, because the beneficiary of the verdict which was set aside has less basis for a claim of prejudice than does one who has unsuccessfully moved for a new trial. Roberts v. Simpson, 275 Ark. 181, 628 S.W.2d 308 (1982).

The method of inquiry into the validity of a jury verdict is governed by Rule 606(b), Unif.R.Evid. The rule attempts to balance the freedom of secret jury deliberations on one hand with the ability to correct an irregularity in those deliberations on the other. It provides that an irregularity in the jury room which is an internal occurrence may not be investigated, but that an irregularity due to some external event may be investigated. It provides:

Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberation or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him...