McLeod v. Humeston & S. Ry. Co.

• Decision Date: 08 March 1887
• Citation: 32 N.W. 246,71 Iowa 138
• Court: Iowa Supreme Court
• Parties: MCLEOD v. HUMESTON & S. RY. CO.

71 Iowa 138

32 N.W. 246

MCLEOD

v.HUMESTON & S. RY. CO.

Supreme Court of Iowa.

March 8, 1887.

Appeal from circuit court, Page county.

Plaintiff brings this action to recover for personal injuries sustained by him while in the employment of defendant as a fireman of a locomotive running upon defendant's road. The petition alleges that the injuries were caused by the negligence of defendant in failing to keep its track at the place of the accident in a safe condition, whereby the locomotive upon which plaintiff was employed was thrown from the track, and precipitated down an embankment. There was a verdict for defendant, which was set aside upon motion of plaintiff, based upon the misconduct of the jury. Defendant appeals from the order of this court setting aside the verdict.W. W. Morseman, for appellant.

McCade & Hill, for appellee.

BECK, J.

1. The engineer in charge of the locomotive was killed by the accident, and a coroner's inquest was held upon his body. The evidence taken at the inquest, by some means which are unexplained, was taken by the jury when they retired to consider the case, and was read by many, if not all, of the jurors. No fault can be attached to counsel on either side for the evidence coming into possession of the jury. It was in the possession of one of the counsel during the trial, and, it appears, was left by him upon the table where he sat. It was given to the jury with other papers when they retired to consider of the verdict. The evidence had not been offered or admitted in evidence, and was, in violation of law, wrongfully taken and read by the jurors. It gave a particular and, in some respects, a minute description and statement of matters pertaining to the accident, some of which tended to show that it was caused by the felonious act of some unknown person; spikes fastening the rails having been pulled out, and the rails thus displaced. The evidence was thus material and pertinent to the issues in the case, and capable of influencing adversely to plaintiff the minds of the jurors who read and considered it. Some of the jurors declare in affidavits filed in support of the motion that the evidence was considered by the jury in determining the verdict; others, in affidavits filed by defendant, declare that it was not; but all who speak upon that point admit that it was read by many jurors.

2. The evidence in question being capable of influencing the jury, and unlawfully before them, there can be no...