Williams v. Chicago & N.W. Ry. Co.

• Decision Date: 04 April 1899
• Citation: 78 N.W. 949,11 S.D. 463
• Parties: WILLIAMS v. CHICAGO & N.W. RY. CO.
• Court: South Dakota Supreme Court

78 N.W. 949

11 S.D. 463

WILLIAMS v. CHICAGO & N.W. RY. CO.

Supreme Court of South Dakota

April 4, 1899

Appeal from circuit court, Clark county: J. O. Andrews, Judge.

Action by M. Williams against the Chicago & Northwestern Railway Company. Verdict for defendant, and from order granting new trial defendant appeals. Reversed.

Coe I Crawford, A. W. Burtt, and C. G. Sherwood, for appellant. S A. Keenan, for respondent.

HANEY J.

This appeal is from an order granting a new trial upon the application of the plaintiff. Three statutory grounds are designated in the notice of intention: (1) Irregularity in the proceedings of the court and jury; (2) misconduct of the jury; and (3) errors in law occurring at the trial. The first two of these grounds can be supported only by affidavits; the last, by a bill of exceptions or statement of the case. Comp Laws, § 5089.

But one affidavit was served with the notice of intention. It is as follows: "E. A.

Parmenter and Hans Lien, Sr., each being first duly sworn, on his oath deposes and states as follows: I was one of the jurors who tried the above-entitled action at the December, 1896, term of said court. I am one of the jurors who did not agree to the verdict rendered in said cause. That said jury retired for deliberation at about four o'clock on the 11th day of December, 1896, and that eight of the said jurors were in favor of returning a verdict for plaintiff, and so voted, till towards morning of the next day. That one A. E. Foss was the bailiff who had said jury in charge. That during part of the night said jury were out for deliberation the said bailiff was in the jury room with the jury, and before the jury agreed to said verdict, and remained with the jury continuously for four or five hours."

Defendant read the following affidavits in opposition to the motion:

"W. C. Elliott and W. Mead, being first duly sworn, each for himself on oath says: I was a member of the jury that rendered the verdict in the above-entitled cause. Near morning one of the jurors invited Andrew Foss, the bailiff, to come into the jury room and warm. He had stayed out about all night in the halls. There was no fire in that part of the building except in the jury room, and the night was bitterly cold. Mr. Foss came in, and laid down on the floor near the door. He did not talk with any of the jurors, nor did they talk with him, while he stayed in the room, nor were any of the jurors near him while he was in the room. No communication was had between him and any of the jurors, by word, sign, letter, or otherwise, while he was in the room. No talk was had between the jurors, nor did the jury vote while he was in the room. When warm, he went out, and locked the door behind him, leaving the jury together."

"Andrew Foss, being first duly sworn, on his oath says: I was the bailiff in charge of the petit jury in the above cause. Between 2 and 3 in the morning I was invited by one of the jurors to come into the jury room and warm, as there was no fire in that part of the building except in the jury room, and I had been standing in the cold all night, and was chilled to the bone. The night was very cold. On that invitation I went into the jury room, and lay on the floor, head to the door. I did not converse with any of the jurors while there, neither did any of the jurors converse with me, nor was any vote taken, nor any act done, nor anything said about the case, while I was present. None of the jurors were near that part of the room where I was during that time, and no communication of any kind passed between us, by word, sign, or letter, or otherwise, during my stay in the jury room. I was in the jury room some time, and when warm I left the room, locking the jury in, as usual."

The foregoing are all the...