Dickerson v. N. Jersey St. Ry. Co.

• Decision Date: 09 June 1902
• Parties: DICKERSON v. NORTH JERSEY ST. RY. CO.
• Court: New Jersey Supreme Court

52 A. 214

68 N.J.L. 46

DICKERSON

v. NORTH JERSEY ST. RY. CO.

Supreme Court of New Jersey.

June 9, 1902.

(Syllabus by the Court.)

Case certified from circuit court, Essex county.

Action by Bailey Dickerson, by his next friend, against the North Jersey Street Railway Company. Verdict for plaintiff, and case certified.

Argued February term, 1902, before the CHIEF JUSTICE and VAN SYCKEL, GARRISON, and GARRETSON, JJ.

Malcolm MacLear, for plaintiff.

George T. Werts, for defendant.

VAN SYCKEL, J. The plaintiff, an Infant about three years and nine months old, was run over by the car of the defendant company. This suit is brought to recover compensation for the injury received by him. After the jury had retired to deliberate upon their verdict, it was ascertained that one of the jurors did not understand the English language. It is admitted that the juror had not been examined by counsel on either side, that they were ignorant of his deficiency in this respect, and that he was not challenged, although the right to challenge by either party was not exhausted. The trial resulted in a verdict for the plaintiff for $5,000.

Four questions are certified for the advisory opinion of this court: (1) Whether the motion of the defendant to set aside said verdict because of such inability of said juror should be granted; (2) whether the motion to nonsuit the plaintiff made by and on behalf of the defendant should have been granted; (3) whether the motion to direct a verdict for the defendant should have been granted; (4) whether the refusal to grant said motions, or any of them, was error for which the said verdict should be set aside.

First, as to the disqualified juror: In Rex v. Sutton, 8 Barn. & C. 417, which was a trial on an indictment for conspiracy, Lord Chief Justice Tenterden, in delivering the opinion of the court, said: "Now, I am not aware that a new trial has ever been granted on the ground that a juror was liable to be challenged, if the party had an opportunity of making a challenge." In U. S. v. Baker, 3 Ben. 68, Fed. Cas. No. 14,499, which was a criminal case, the court refused to set aside a verdict because one of the jurors was deaf. In State v. Madigan, a Minnesota case, reported in 59 N. W. 490, the trial was for perjury, in which one of the jurors did not understand the English language. The motion for a new trial was denied on the ground that the moving party had an opportunity to challenge. In Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258, the application for a new trial was refused. Chief Justice Gray delivered the opinion of ...