Ralton v. Sherwood Logging Co.

• Decision Date: 17 July 1909
• Citation: 54 Wash. 254,103 P. 28
• Parties: RALTON v. SHERWOOD LOGGING CO.
• Court: Washington Supreme Court

103 P. 28

54 Wash. 254

RALTON v. SHERWOOD LOGGING CO.

Supreme Court of Washington

July 17, 1909

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by James A. Ralton against the Sherwood Logging Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Roberts Battle, Hulbert & Tennant, for appellant.

James Hart and Jay C. Allen, for respondent.

PARKER J.

This action was prosecuted in the superior court by the plaintiff against the defendant to recover damages on account of personal injuries which he alleges were the result of defendant's negligence while working in its logging camp. Upon a trial before the court and a jury verdict and judgment were rendered in plaintiff's favor, from which the defendant appeals to this court.

Briefly stated, and so far as necessary for our consideration, the facts here involved are as follows: The respondent was injured by the giving way and pulling down upon him of a tree by a cable, attached thereto as a part of the tackle and appliances used by appellant in its logging operations. We need not stop to describe the tackle, or the manner of applying the force or pull thereto, since the only question of negligence involved is as to whether or not appellant was negligent in fastening the cable to a tree of insufficient size and strength to stand the force which would necessarily be applied to it. This question was submitted to the jury by the court in the following concise instruction: 'I instruct you that the only question of negligence alleged in this case is negligence of fastening a block and cable to a hemlock tree of insufficient size and strength, and that the only allegation of negligence which you are called upon to consider is the allegation that the tree to which the line and block was fastened was a tree of insufficient size and strength to withstand the pull that was placed upon it.' Neither party complains of this instruction. We, therefore, quote it to show the exact issue submitted to the jury. It is first contended by learned counsel for appellant that the evidence upon the question of its negligence in attaching the cable to a tree of insufficient size and strength was not such as to warrant the jury's finding, and that the court erred in denying the motion for new trial upon that ground. We have carefully read the evidence of the various witnesses touching this question, and conclude that it was amply sufficient to support the verdict. We do not feel called upon to discuss the evidence in detail.

Upon hearing of the motion for new trial appellant's attorney sought to show, by affidavits of five of the jurors misconduct on the part of the jury in arriving at their verdict, in that they ignored the court's instruction above quoted. These affidavits are all in substance the same. We quote from one as printed in appellant's brief, as follows: 'That, in consideration of the case by the jury, this affiant and the other jurors did not take into consideration the question of the size of the tree to which the lead block was fastened, but based its verdict upon the fact that it considered that the employés and servants of the defendant were negligent in not giving to plaintiff a sufficient warning of his danger.' It is strenuously argued that the facts shown by these affidavits are such as to entitle appellant to a new trial upon ground of misconduct of the jury. The real question in this connection is as to whether or not such conduct can be shown by the affidavits of the jurors. Touching the use of affidavits of jurors to impeach their verdict, the general rule is stated in 2 Thompson on Trials, as follows: 'Sec. 2618. Upon grounds of public policy courts have almost universally agreed upon the rule that no affidavit, deposition, or other sworn statement of a juror will be received to impeach the verdict, to explain it, to show on what grounds it was rendered, or to show a mistake in it; or that they misunderstood the charge of the court; or that they otherwise mistook the law, or the result of their finding; or that they agreed on their verdict by average or by lot.' 29 Cyc. 982; 14 Ency. Pl. & Pr. 905. This court has heretofore announced its adherence to this doctrine. Marvin v. Yates, 26 Wash. 50, 66 P. 131; State v. Parker, 25 Wash. 405, 415, 65 P. 776, 779. Counsel for appellant rely upon the latter case for the purpose of showing that the conduct of the jury as here shown does not inhere in the verdict, and...