Phillips v. R.I. Co.

• Decision Date: 23 December 1910
• Citation: 32 R.I. 16,78 A. 342
• Parties: PHILLIPS v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

78 A. 342

32 R.I. 16

PHILLIPS

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

Dec. 23, 1910.

Exceptions from Superior Court, Providence and Bristol Counties; Christopher M. Lee, Judge.

Action by Samuel Phillips against the Rhode Island Company. Judgment for plaintiff, and defendant brings exceptions. Overruled.

Waterman, Curran & Hunt, for plaintiff.

Joseph C. Sweeney and Alonzo R. Williams, for defendant.

JOHNSON, J. This is an action on the case, brought by Samuel Phillips against the Rhode Island Company to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant company in the operation of one of its street cars. On April 21, 1905, the plaintiff was driving a heavy wagon loaded with oats, drawn by one horse, and was proceeding in an easterly direction from Promenade street, across Canal street, into Steeple street, in the city of Providence. Canal street, running north and south, intersects Steeple street, running east and west, and Promenade street runs into Canal street nearly opposite Steeple street. The defendant company had a single track running through Steeple street into Canal street, which track, just before reaching the intersection with Canal street, curved in a southerly direction towards the corner of Steeple and Canal streets and extended across Canal street. At the time in question the plaintiff's wagon, going in an easterly direction, had just crossed the tracks in Canal street—15 or 20 feet westerly from the crosswalk at the foot of Steeple street—in order to proceed easterly on the southerly side of Steeple street. Near the crosswalk on Steeple street his wagon came in contact with a car of the defendant company, which came down Steeple street towards Canal street, and the plaintiff was thrown to the ground and sustained the injuries complained of. The case was tried in the superior court with a jury on the 21st, 24th, and 25th days of January, 1910, and a verdict was rendered for the plaintiff in the sum of $2,500.

Thereupon the defendant moved for a new trial, alleging as grounds therefor: First, that said verdict was contrary to the evidence and the weight thereof; second, that said verdict was contrary to the law; third, that the amount of damages awarded by said verdict is excessive; fourth, that certain members of the jury before whom said cause was tried were guilty of misconduct in this, that during the progress of said trial and without the consent of the court, without the knowledge and consent of the attorneys for the defendant, did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted; fifth, that certain members of said jury during the progress of said trial did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted, without the knowledge and consent of the defendant, and under such circumstances as to be calculated to lead a jury into error in the determination of said case. Certain affidavits were filed by the defendant in support of said motion. The defendant's motion for a new trial was denied by the justice who presided at the trial, and the case is now before this court on the defendant's bill of exceptions.

The exceptions pressed by the defendant are to the denial of its motion for a new trial upon the several grounds stated therein; the other exceptions stated in the bill being waived. From an examination of the evidence, which was conflicting, we are not able to say that the jury was not justified in returning a verdict for the plaintiff, or that the damages are excessive.

Upon the question of unauthorized views alleged to have been taken by two of the jurors, the affidavit of one juror was introduced, stating that, in coming from the restaurant where he had been to dinner, he paced the distance from the restaurant to the corner of Canal street, and measured in his mind the distance from the south curbing on Steeple street to the car track, and thought it was not enough for a car and team to pass. An affidavit was also introduced stating that another juror had told the affiant that he, said juror, on Monday, January 24th, went alone to the place of the accident, to see how near his eye measurement would come to that stated in court; that he walked down Steeple street, on the south side of the street, and as he was walking along he thought in his own mind that the distance from Allen & Northup's restaurant to the corner of Canal street was about what was stated in court; that as he was walking towards the corner of Canal street he had a good view of the space from Steeple street south curbing to the car track, and thought in his own mind that the distance was less than that stated in court; that he thought it would be a close squeeze for a car and team to pass each other when the car was on the curve; that he thought in his own mind that if the car was on the straight track on Steeple street that the team could have passed all right. This juror, by his affidavit on file, denied making the statements attributed to him by said affiant, and stated that the only view he had of the place of the accident was when the jury took a view, January 21, 1910.

The defendant relies on the case of Garside v. Ladd Watch Case Co., 17 R. I. 691, 24 Atl. 470, as decisive of this case. In that case the plaintiff had been injured by falling into an opening in the landing of a stairway caused by a trapdoor being left open. There was much conflicting testimony as to the structure, size, and exact location of the trapdoor in question; there being testimony that the entire landing was a trapdoor and that there was another trapdoor within the landing, and, on the other hand, testimony that there was no trapdoor within the landing, but that the landing itself was on hinges and constituted the only trapdoor there. After verdict for the plaintiff, the defendants petitioned for a new trial on the ground, inter alia, that certain members of the jury had during the trial taken an unauthorized view of the premises. In support of this motion the defendant offered in evidence a number of affidavits made by persons in the employ of the defendant to the effect that on the last day of the trial four or five of the jurors engaged in said trial visited the place where the accident happened, and examined the landing and trapdoor in question. The defendant also offered the affidavits of three of the jurors to the effect that the affiants and two other members of the jury visited the premises during the trial, of their own motion, and examined the trapdoor in question. The court granted a new trial, but did not decide the question of the admissibility of the affidavits of the jurors, saying (page 696 of 17 R. I., page 472 of 24 Atl.): "But we need not decide in the present case whether the affidavits of the jurors, offered in evidence, as to what took place outside the jury room, are admissible, for there is sufficient proof of their misconduct without said affidavits."

There was no conflict of evidence in the case before us as to the distances referred to in the affidavit of the juror. The affidavit, if admissible, would not in our opinion be sufficient to justify a new trial. As, however, it was admitted by the court below, it becomes necessary to consider the question of its admissibility. It is well settled in this state that the affidavits of jurymen as to what takes place in the jury room are inadmissible to impeach their verdict. In Tucker v. Town Council of South Kingstown, 5 R. I. 558, 560, the court, speaking by Ames, C. J., said: "The affidavits of the jurymen as to what took place in the jury room, or as to the grounds upon which they found their verdict, and which were read de bene at the hearing, must be rejected; a rule of policy, well settled both in England and in this country, excluding, for the security of verdicts, this mode of impeaching them."

The general rule that the affidavits of jurors as to their own misconduct during the trial are inadmissible to impeach their verdict is, we think, supported by the great weight of authority both in this country and in England. In Owen v. Warburton, 1 N. R. 320, where the affidavit of a juryman that the verdict was decided by lot was offered, Mansfield, C. J. (pages 329, 330), said: "We have conversed with the other judges upon this subject, and we are all of the opinion that the affidavit of a juryman cannot be received. It is singular that almost the only evidence of which the case admits should be shut out; but, considering the arts which might be used if a contrary rule were to prevail, we think it necessary to exclude such evidence. If it were understood to be the law that a juryman might set aside a verdict by such evidence, it might sometimes happen that a juryman, being a friend to one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view afterwards to set aside the verdict by his own affidavit, if the decision should be against him."

In State v. Freeman, 5 Conn. 348, 351, the court, by Hosmer, C. J., said: "In this state, it has been the practice to admit such testimony; but said Chief Justice Swift (1 Dig. 775): 'In England, and in the courts of the United States, jurors are not permitted to be witnesses respecting the misconduct of the jury, for it is a great misdemeanor; and this is most unquestionably the correct principle, for otherwise a juror, who should be disposed to set aside a verdict, would give information to the party for that purpose. If not so disposed, he could suppress the information; and, in that way, any of the jury could command the verdict.' The question before us regards a point of practice; and, as this cannot have any consequences antecedent to this case, it is competent for the court to decide, unshackled by precedent, and change...