Cawthra v. City of Greeley, 20384

• Decision Date: 20 April 1964
• Docket Number: No. 20384,20384
• Parties: Lillian M. CAWTHRA, Plaintiff in Error, v. CITY OF GREELEY, a Municipal Corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 876

391 P.2d 876

154 Colo. 483

Lillian M. CAWTHRA, Plaintiff in Error, v. CITY OF GREELEY, a Municipal Corporation, Defendant in Error.

No. 20384.

Supreme Court of Colorado, In Department.

April 20, 1964.

As Modified on Denial of Rehearing May 18, 1964.

Kenneth N. Kripke, Denver, Raymond R. Pope, Greeley, for plaintiff in error.

Yegge, Hall & Shulenburg, Raymond J. Connell, Denver, for defendant in error.

McWILLIAMS, Chief Justice.

Trial by jury resulted in a verdict in favor of Lillian Cawthra against the City of Greeley in the sum of $6500 as damages for personal injuries suffered by her in a fall on a sidewalk in that city.

Greeley in apt time filed a motion for new trial wherein it averred, among other things, the following:

'4. That dring the course of the trial, one of the jurors went to the scene of the accident and observed that the sidewalk that was involved in the accident had been repaired by the City, and conveyed this information to some or all of the jurors during the course of their deliberations; that such conduct is improper and had the capacity to influence the jury in arriving at their verdict and was therefore highly prejudicial to the defendant.'

This motion for a new trial was not supported by any affidavit, a fact pointed out to the trial court. When this motion came on for hearing, one Wilson testified that he served as a juror in the Cawthra trial and that during a recess of court he had occasion to transact some personal business at a business establishment situate directly across the street from the place where Mrs. Cawthra was alleged to have fallen and injured herself some four years prior thereto. When asked what he saw when he 'glanced over there', juror Wilson answered: 'Well, I didn't notice any holes and I assumed it had been fixed.' Wilson then went on to relate that in the jury room during the course of their deliberation he mentioned to the other jurors what he had seen when he 'glanced' at the place where the fall allegedly occurred.

At this same hearing another juror testified that as she recalled during their deliberations juror Wilson did make mention of the fact that he had 'glanced' at the general area where the fall occurred and that he commented in regard thereto that he 'didn't notice any holes.'

It was brought out at this hearing that each of these two jurors after the Cawthra trial was concluded was questioned by a private investigator in the employ of the attorney for Greeley and that the allegation in the motion for new trial as to juror misconduct was based on the fruits of his investigation. Juror Wilson further testified that this investigator prepared an affidavit for his signature, but that he declined to sign the same because it contained the statement that he (Wilson) made a special trip to view the scene of the slip and fall, which he said was not the case.

The trial court granted the motion for new trial, holding that there was such a showing of juror misconduct as to require a second trial of the matter. In the manner followed in Chartier v. Winslow Crane Service, 142 Colo. 294, 350 P.2d 1044, Cawthra elected to stand on the record as made, whereupon the trial court dismissed the action. By writ of error Cawthra now seeks reversal of the judgment of dismissal and asks for a remand of the matter with directions to the trial court to enter a judgment in her favor against Greeley in the sum of $6500. It is obviously her position that as a matter of law the trial court erred in granting Greeley's motion for a new trial.

Rule 59, R.C.P.Colo. provides that a motion for new trial based on '[m]isconduct of the jury * * * shall be supported by affidavit filed with the motion.' The reason for the requirement of a supporting affidavit is at once obvious. It is a most salutary rule to require a supporting affidavit where...