Appeal
from Page Circuit Court.
ACTION
for a personal injury received by plaintiff by falling upon a
sidewalk, by reason of the same being obstructed by snow and
ice, and dangerous to travel, as is alleged. There was a
trial by jury, and a verdict and judgment for plaintiff.
Defendant appeals.
AFFIRMED.
OPINION
ROTHROCK, CH. J.
The
defendant filed a motion for a new trial, one ground of which
was the alleged misconduct of one of the jurors who tried the
case. The motion was supported by three affidavits, one of
which is as follows: "I, W. C. Stillians, on oath, do
say that I am a resident of Clarinda, and that I am
acquainted with Horace Pratt, who was a member of the jury
that tried the cause of N. C. Ridenour v. The City of
Clarinda; that shortly before the said cause was
submitted to said jury, and while it was pending, I was
present with him in John Burrows' drug-store, in
Clarinda, and while he was present the merits of the case
were fully discussed in his presence and hearing; that I
myself said, in his presence, that 'it is a given-up fact
that the plaintiff has the judge;' that it is patent to
everybody that the judge is in favor of Newt., [meaning
plaintiff,] and that his attorneys say he has an equal show
with the jury; that a great deal more was said
than appears in quotation marks, and the case discussed from
the beginning, and this juror made remarks concerning the
case, saying that 'Morsman,' one of the attorneys in
the case, 'was the best speaker and had the best
voice;' and that the person to whom I was speaking
replied that it was admitted that the plaintiff had the
judge; that I did not know at the time I was talking that
Horace Pratt was a member of the jury, and that he never made
it known to any one that
he was a juror, and never asked any one to desist, but waited
and listened to the discussion for at least fifteen minutes
that he staid for awhile after it was suggested by some one
that he [Pratt] was a juror; that I never would have
discussed the case had I known he was a juror, and ceased as
soon as I discovered it. All the above facts and statements
are true, as I verily believe, so help me God." The
other two affidavits corroborate that of Stillians in part,
and in one of them it is stated that, when some one suggested
that Pratt was a juror, he (Pratt) said: "Go ahead,
boys; I will soon have the case decided;" and then
retired.
The
plaintiff, in resistance to the motion, filed the affidavit
of the juror Pratt, in which he admitted that he was in the
drug-store a few minutes, but that he heard no discussion in
regard to the case; that when he went into the drug-store he
heard Stillians say to some person there present that
"Morsman has the judge," or "generally has the
judge," and...
