Woodbury v. City of Anoka

• Decision Date: 20 January 1893
• Citation: 52 Minn. 329,54 N.W. 187
• Parties: WOODBURY v CITY OF ANOKA.
• Court: Minnesota Supreme Court

52 Minn. 329

54 N.W. 187

WOODBURYvCITY OF ANOKA.

Supreme Court of Minnesota.

Jan. 20, 1893.

(Syllabus by the Court.)

1.Where there is misconduct of jurors that may have had an influence on the verdict unfavorable to the defeated party, the verdict must be set aside, unless it appear, beyond doubt, that in fact it had no such effect.

2. Certain misconduct of jurors held such that it may have had an influence unfavorable to the defeated party.

Appeal from district court, Anoka county; Lochren, Judge.

Action by Prescott J. Woodbury against the city of Anoka for personal injuries caused by a defective sidewalk. Verdict for defendant. From an order refusing a new trial, plaintiff appeals. Reversed.

George H. Wyman, for appellant.

Everett Hammons, for respondent.

GILFILLAN, C. J.

Action for an injury to the person, caused by a loose plank in a plank sidewalk, alleged to have become and continued loose and dangerous through the negligence of defendant. After a verdict for defendant, plaintiff moved for a new trial on several grounds, including misconduct of two of the jurors, which is the only one we need consider. The injury occurred May 12, 1890. The trial was had September 21, 1891. It appeared clearly enough that the plank was loose and dangerous, and the only real controversy was as to the negligence of the defendant, which depended on notice to it of the condition of the plank, and its neglect to repair. There was no evidence of notice, except as the jury might infer it from the condition of the part of the sidewalk for a considerable time before the injury, and as to that the evidence was such that the jury could find either way. It appears that during the trial the court denied a request that the jury take a view of that part of the sidewalk. The alleged misconduct of the two jurors consisted in their making an examination notwithstanding the refusal of the court. The affidavits of two persons were presented to prove it, one of whom swore that he saw the two jurors and one Manning, a witness for defendant, at the place where the injury occurred, holding an animated conversation, examining the sidewalk and stringers and spikes and nails, and jumping up and down on the sidewalk, and otherwise testing and examining it, and Manning pointing out different spots and localities upon it, for fully 10 minutes. The other person, in his affidavit, stated substantially the same facts, and that he overheard the jurors and Manning, during the examination, frequently using the words “spikes,” “planks,” “sidewalks,” “stringers,” and “sleepers,” though he could not further distinguish what they were talking about. Manning, in his affidavit used in opposition to the motion for a new trial, states that, seeing the two...