Ellis v. City of Hammond
| Decision Date | 10 October 1901 |
| Docket Number | 19,176 |
| Citation | 61 N.E. 565,157 Ind. 267 |
| Parties | Ellis, by his Next Friend, v. City of Hammond |
| Court | Indiana Supreme Court |
From Lake Superior Court; H. B. Tuthill, Judge.
Action by Albert M. Ellis, by his next friend, against the city of Hammond for damages for personal injuries caused by an alleged defective street. From a judgment for defendant plaintiff appeals.
Affirmed.
M. M Bruce and O. J. Bruce, for appellant.
B Borders and L. Becker, for appellee.
Appellant sought to recover a judgment against appellee for $ 10,000 for personal injuries sustained by reason of the alleged negligence of appellee in maintaining a defective sidewalk. A trial by jury resulted in a verdict being returned in favor of the appellee, and along with this general verdict the jury returned answers to a series of interrogatories. The trial court denied appellant's motion for a new trial, and rendered judgment upon the verdict, that he take nothing by his action. The error assigned in this appeal is the overruling of the motion for a new trial. The grounds upon which appellant bases his right to a reversal of the judgment may be enumerated as follows: (1) Misconduct of a juror; (2) surprise at the evidence given by one of his own witnesses; (3) newly discovered evidence; (4) error of the court in giving instruction number eight.
In verification of the first of the above enumerated grounds, appellant in the lower court filed the affidavit of Milo M. Bruce, the attorney who represented him in the cause below, and also his counsel in this appeal. This affidavit discloses that after the jury had retired to their room to deliberate upon a verdict, that the affiant, while in a room adjoining the one where the jury was deliberating, heard one of the jurors make the following statement in the presence of the other members:
Affiant further stated in his affidavit that he believed that the juror who made this statement was Henry Kersper. It is fully disclosed by this affidavit that appellant's counsel had knowledge of the alleged misconduct of the juror before the jury had agreed upon their verdict. The knowledge of his counsel under the circumstances must be imputed to him. Conceding then, without deciding, that the alleged misconduct was of a character that might vitiate the verdict of the jury, and also that such misconduct was properly presented to the lower court by the affidavit in question, still it is not available in this appeal, because appellant's objections thereto were not seasonably interposed in the trial court under the rule asserted and enforced by the decisions of this court. See Messenger v. State, 152 Ind. 227, 52 N.E. 147, and cases there cited.
In support of the reason for a new trial on the ground that the plaintiff below was surprised at the evidence given on the trial by one of his own witnesses, he filed the affidavit of his counsel. This affidavit discloses that about two weeks prior to the trial the witness in question stated to the plaintiff's attorney that one of the planks in the sidewalk in dispute "had a dry rot in the side" about a foot long and wide enough for a person to catch his foot in it, and that the plank had been in that condition for about six months prior to the time plaintiff received his injuries. It appears that when the witness was placed upon the stand to testify in behalf of plaintiff, that he denied these facts, and by reason of this denial appellant alleges that he was surprised, etc. Under the third subdivision of our civil code defining causes for a new trial, accident or surprise against which ordinary...
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