Hoffman v. City of St. Paul

• Decision Date: 18 November 1932
• Docket Number: 29,056
• Citation: 245 N.W. 373,187 Minn. 320
• Parties: ELIZABETH F. HOFFMAN v. CITY OF ST. PAUL AND ANOTHER
• Court: Minnesota Supreme Court

245 N.W. 373

187 Minn. 320

ELIZABETH F. HOFFMAN v. CITY OF ST. PAUL AND ANOTHER

No. 29,056

Supreme Court of Minnesota

November 18, 1932

Action in the district court for Ramsey county to recover damages for injuries sustained by plaintiff when an auto in which she was riding struck a ridge or a hump on one of the streets of the defendant city of St. Paul. The case was tried before O'Brien, J. and a jury. There was a verdict of $5,200 in favor of plaintiff against defendant city and its contractor the defendant Mariani. From an order denying their motion for a new trial the defendants appealed. Affirmed.

SYLLABUS

Municipal corporation -- obstruction in street -- negligence and liability.

1. The evidence sustains the verdict finding the defendant city and the defendant Mariani, its contractor, negligent in leaving a ridge across the street upon the completion of a trench and the making of a sewer connection.

Automobile -- obstruction in street -- contributory negligence.

2. There was no issue for the jury upon the contributory negligence of the plaintiff, who was riding as a guest in an auto and was injured when the auto struck the ridge.

Municipal corporation -- obstruction in street -- contractor -- liability.

3. The excavation and the ridge were made by the defendant contractor under the direct supervision of the defendant city, whose inspector was present all the time. If one was negligent the other was, and it was not error to refuse to charge that the jury could find against one defendant and for the other.

Damages -- not excessive.

4. The verdict was for $5,200. It was not excessive.

Trial -- quotient verdict.

5. A quotient verdict, obtained through an agreement whereby each juror puts down the amount he thinks proper, the 12 amounts are added and divided by 12, and the quotient by the agreement is the verdict, is invalid; but not so if in the course of reaching an agreement the amounts representing the views of the individual jurors are divided by 12 and upon consideration the quotient is agreed upon as the verdict.

New trial -- affidavits of jurors -- admissibility.

6. Affidavits or the testimony of jurors as to what transpired in the jury room are not admissible to impeach their verdict.

Trial -- quotient verdict.

7. The rule stated in paragraph six applies when it is sought to attack a verdict as a quotient one.

Trial -- polling of jury.

8. The polling of the jury is for the purpose of ascertaining for a certainty that each juror agrees upon the verdict. It is not to determine whether the verdict presented was reached by the quotient process.

Lewis L. Anderson, H. J. Flynn, and Edwin Murphy, for appellant city of St. Paul.

James D. Swan, for appellant Ulderico Mariani.

William H. Seward and T. D. Sheehan, for respondent.

OPINION

DIBELL, J.

Action to recover damages for personal injuries sustained by the plaintiff while a passenger in an automobile. There was a verdict for the plaintiff. The defendants appeal from an order denying their motion for a new trial.

1. On Sunday, April 27, 1930, the plaintiff and her daughter were on the way home from church in an automobile. Plaintiff was riding in the rear seat. Her daughter was driving. The auto belonged to the plaintiff's husband. He was not along.

On March 24, 1930, the defendant Mariani under a contract with the city dug a trench for sewer connections in St. Anthony avenue west of the curb line of Dale street. It extended from the center of St. Anthony avenue to the curb. It was two and one-half feet wide and 11 feet deep. The sewer connection was made, and the trench was filled. There was left a ridge or hump 16 feet long and 12 to 14 inches high, which sloped to the street level. The automobile hit it, and the plaintiff was injured. The evidence sustains a finding that the defendants were negligent in leaving the hump or ridge as it was and that their negligence caused the injury to the plaintiff. Cunningham v. City of Thief River Falls, 84 Minn. 21, 86 N.W. 763; Bieber v. City of St. Paul, 87 Minn. 35, 91 N.W. 20; Kleopfert v. City of Minneapolis, 93 Minn. 118, 100 N.W. 669; Ogren v. City of Minneapolis, 121 Minn. 243, 141 N.W. 120; Fitzgerald v. Village of Bovey, 174 Minn. 450, 219 N.W. 774.

2. The court charged that there was no contributory negligence on the part of the plaintiff. She was a passenger. She sat in the back seat. She conducted herself as a passenger usually does. She knew nothing of the presence of the ridge or hump. She trusted in her daughter as a driver. There is nothing from which a lack of care on her part can be found. The question of the contributory negligence of a passenger was considered in Howe v. M. St. P. & S.S.M. Ry. Co. 62 Minn. 71, 64 N.W. 102, 30 L.R.A. 684, 54 A.S.R. 616, and the general doctrine announced. Sometimes the question is held one of fact for the jury, often one of law for the court, and infrequently it has been held that the passenger as a matter of law was negligent. See 4 Dunnell, Minn. Dig. (2 ed. & Supp.) §§ 7037-7038. The following hold, under the particular facts of the case, that as a matter of law the passenger was not contributorily negligent. Johnson v. St. Paul City Ry. Co. 67 Minn. 260, 69 N.W. 900, 36 L.R.A. 586; McDonald v. Mesaba Ry. Co. 137 Minn. 275, 163 N.W. 298; Fitzgerald v. Village of Bovey, 174 Minn. 450, 219 N.W. 774; Wicker v. North States Constr. Co. Inc. 183 Minn. 79, 235 N.W. 630; Engholm v. Northland Transp. Co. 184 Minn. 349, 238 N.W. 795; Burgess v. Crafts, 184 Minn. 384, 238 N.W. 798. The court's refusal to submit the question to the jury was correct.

3. The defendants claim error in the court's refusal to charge that there might be a verdict for either of the defendants. The city hired the contractor. It knew what he did. The contractor did the work under the immediate charge of the inspector of the city. If one was negligent the other was. Either might have been sued alone. But both were sued together, and there was nothing justifying a charge that one might be found liable and the other not liable.

4. The verdict was for $5,200. It was not excessive. The plaintiff was severely bruised. She was unconscious for a short time. She was abed for a month following the accident and intermittently for some time thereafter. She was again abed from February to May, 1931. Her heart action was affected. One vertebra was crushed. She had some arthritis. She suffered pain. She sustained the loss of one eye. The damages awarded were within the fair discretion of the jury, and further discussion of the amount is unnecessary.

5. It is a contention of the defendants that the verdict was a quotient verdict and therefore invalid.

A quotient verdict, that is, one reached through an agreement that each juror put down the amount which he would award, and that the quotient resulting upon a division of the total by 12 shall be the verdict, is invalid. It is not supposed that jurors usually are at once in agreement upon the amount which is proper compensation for injury. They consider and discuss and finally come to a conclusion of what is fair and compensatory. They compare and may compromise their views. If in the process of reaching their award they set down the sums representing their individual views, add them, divide by 12, and upon further consideration and deliberation all agree upon the quotient as the fair amount of the award, nothing else appearing, the verdict is valid. St. Martin v. Desnoyer, 1 Minn. 131 (156), 61 Am. D. 494; Reick v. G.N. Ry. Co. 129 Minn. 14, 151 N.W. 408; Larson v. Wisconsin Ry. L. & P. Co. 138 Minn. 158, 164 N.W. 666; Note 52 A.L.R. 44; 20 R.C.L. p. 243, § 28; Am. Dig. Trial, § 315.

6. Affidavits or the testimony of jurors as to what transpired in the jury room are not admissible to impeach their verdict. This is the long settled doctrine of Minnesota. 5 Dunnell, Minn. Dig. (2 ed. & Supp.) § 7109, and cases cited; Am. Dig. New Trial, § 143. In 5 Wigmore, Ev. (2 ed.) §§ 2353, 2354, the history of the doctrine is traced and a critical discussion is had of the cases and the basis of their decision. It is stated that there are but five or six jurisdictions holding to the contrary. The injustice of the application of the doctrine in a particular case is recognized; but the thought is that on the whole greater wrong would be done by the application of a different rule and that good policy sustains the one adopted. A typical statement is found in McDonald & U.S.F. & G. Co. v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300, where Mr. Justice Lamar, in referring to the rule against the reception of the affidavit of a juror to impeach the verdict in which he joined, said:

"The rule is based upon controlling considerations of a public policy which is these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room. * * * And, of course, the argument in favor of receiving such evidence is not only very strong but unanswerable -- when looked at solely from the standpoint of the private party who has been wronged by such misconduct. The argument, however, has not been sufficiently convincing to induce legislatures generally to repeal or to modify the rule. For, while it may often exclude the only possible evidence of misconduct, a change in the rule 'would open the door to the most pernicious rts and tampering with jurors.'"

7. The rule stated in paragraph six relative to attacking a verdict upon the...