Harrington v. Worcester

• Decision Date: 05 January 1893
• Citation: 32 N.E. 955,157 Mass. 579
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HARRINGTON v. WORCESTER, L. & S. ST. RY. CO., (two cases.)

157 Mass. 579

32 N.E. 955

HARRINGTON

v.WORCESTER, L. & S. ST. RY. CO., (two cases.)

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 5, 1893.

Exceptions from superior court, Worcester county; ELISHA B. MAYNARD, Judge.

Actions by Calista E. Harrington against the Worcester, Leicester & Spencer Street-Railway Company, and Leonard Harrington against same. Motions to set aside verdicts for defendant were allowed, and defendant excepts. Exceptions overruled.

The following are defendant's exceptions: “These were separate actions, of tort, to recover of the defendant corporation damages for injuries suffered by the plaintiffs, in person and property, September 9, 1891, by reason of the plaintiff's team coming into collision with a car owned by the defendant which was then being driven by electricity along Canterbury street, in the city of Worcester, in charge of the defendant's servants. By agreement of the parties, and with the approval of the court, the cases were tried together, and the jury were taken to the scene of the accident to view the premises. After the jury had rendered a verdict for the defendant in each action, it came to the knowledge of the plaintiff's counsel that Curtis B. Green, one of the jurors before whom the causes had been tried, after the arguments had been made, and before the charge of the presiding judge hadbeen given, went alone to view the premises where the accident happened, and made some inquiries of persons he found there concerning the accident; and thereupon, in behalf of the plaintiffs, they filed motions for new trials on account of the said juror's conduct, and alleged that his said acts amounted to such misconduct as required said verdicts to be set aside. (Motions for new trial referred to.) At the hearing upon the motions for new trial, the affidavit of John Roach was put in evidence, and the said juror, Curtis B. Green, testified that the arguments in said causes were finished Wednesday afternoon, and that Thursday morning, before the coming in of the court, when the charge of the presiding judge was to be given to the jury, he visited, alone, the scene of the accident, and there looked the premises over, and went into a store near where the accident happened, and asked the proprietor if he saw the accident. The proprietor informed him that he did not see the accident, as he was away at the time it occurred. Mr. Green then asked him if the electric cars did not run faster about the time they began running last fall than they do now, which question the proprietor answered in the affirmative, and adding that the cars last fall ran at a rate of eighteen or twenty miles an hour. Mr. Green then passed out of the store, and seeing Mr. John Roach, who had testified for the plaintiffs in the trial of the causes, he said to him, ‘Just where did you stand at the time of the accident?’ Mr. Roach pointed out the place, but there was no further conversation between them, and this was all that he said or did at the time he viewed the premises alone. While Mr. Green was testifying, he was asked the following question by the defendant's counsel: ‘Did you see or hear anything at the time you viewed the premises alone that influenced your mind, one way or the other, in relation to this case, or anything that influenced your mind against the plaintiffs or their causes, in any degree?’ These questions, upon the objection of the plaintiffs, were excluded by the court, and the defendant excepted. Upon the trial, plaintiffs contended that the cars, at the time of accident, ran much faster than later, which was contradicted by defendant. The foregoing was all the evidence upon the motions. At the conclusion of the foregoing evidence on the motions for new trial, the defendant asked the court to make the following rulings, to wit: ‘(1) That on the evidence, as matter of law, the plaintiffs' motions ought not to be granted; (2) that there is no evidence to authorize a finding the mind of the juror was influenced against the plaintiffs; (3) that, if the court finds that the juror saw nothing but what he had seen on the view, there would be no legal reason, on that account alone, to set aside the verdict; (4) that the court would not, as matter of law, be authorized to set aside the verdict, unless he finds that the juror was influenced unfavorably to the plaintiffs by what he saw or heard; (5) if all the information obtained by the juror was in favor of the contention of the plaintiffs during the trial, the court would not be authorized, as matter of law, to set aside the verdict.’ The court refused to make the rulings as requested, and the defendant excepted. The court took the motions, and the evidence thereon, under advisement, and subsequently granted the motions, and ordered the verdicts set aside, as matter of discretion. The defendant, being aggrieved by the refusals and allowance of the motions, as matter of discretion, now files its exceptions, and respectfully asks that they may be allowed.”

F.P. Goulding and C.R. Johnson, for plaintiff.

F.A. Gaskill and B.W. Potter, for defendant.

LATHROP, J.

A motion for a new trial is addressed to the discretion of the justice presiding at the trial, and his decision is final upon all questions of fact. But questions of law which arise for the first time at the hearing upon the motion, relating to the competency of the evidence or the rulings of the justice, may be revised by this court. Woodward v. Leavitt, 107 Mass. 453, 460; Pub.St. c. 153, § 8.

The question to the juror was properly excluded. The rule was thus stated in Woodward v. Leavitt, by Mr. Justice GRAY: “A juryman may testify to any facts bearing upon the question of the existence of the disturbing influence, but he cannot be permitted to testify how far that influence operated upon his mind.” See, also, ...