Siemsen v. Oakland, San Leandro, & Haywards Electric Railway

— Plaintiff sued to recover damages for injuries sustained by him, through the derailment of one of defendant’s electric cars moving upon a street in the city of Oakland. The cause was tried before .a jury, and the verdict and judgment were for plaintiff. In due time defendant moved for a new trial, upon the grounds of misconduct of the jury, insufficiency of the evidence, and errors of law occurring at the trial. The court granted the motion for a new trial upon the sole ground of the misconduct of juror Long, stating further, that all other grounds of the motion had been examined and found insufficient. Under this order we will not here review the evidence for a redetermination of the question of its sufficiency or insufficiency. (Kauffman v. Maier, 94 Cal. 269 .) There are thus left for consideration the questions of the misconduct of the juror Long, and the asserted errors of the court in the trial of the case.

As to the issues joined by the pleadings, saving the issue upon the nature, character, and extent of plaintiff’s injury, reference may be made to the case of Johnsen v. Oakland etc. Electric Ry. Co., 127 Cal. 608 . Plaintiff in that case was a passenger upon the same car to which the accident occurred. The evidence as to the nature, occasion, and extent of the accident to the car was substantially the same, and given by the same witnesses, in that case as in the case at bar. This evidence shows that the car was going at an unusual and excessive rate of speed, and that while upon a curve in the track, a flange of a wheel broke, the car was suddenly derailed, and the plaintiff hurled from the car to the ground, sustaining the injuries complained of. In the Johnsen case it was said: “It is first contended that the excessive speed of the car was not the proximate cause of the accident. This claim is based upon the testimony of defendant’s witnesses to the effect that a perfect wheel of the kind here in use would, safely support a similar car running at a speed much greater than the speed of this car at the time of the accident. This may be conceded, and still, under the facts of this case, it might well be said by the jury that the excessive and unlawful rate of speed of the car was the proximate cause of the injury. The jury may well have been justified in saying that after the flange of the wheel broke, the car would not have left the track, if the speed had not been excessive; or the jury may have gone a step further, and declared that even though the car would have left the

So much by way of preliminary to an understanding of the matters relating to the alleged misconduct of the juror Long. In support of this ground of motion, defendant offered two affidavits,— the one by Frank Putnam, a conductor upon one of the cars of defendant company; the other by C. Gustafson, superintendent of the defendant company. The latter affidavit the court refused to admit in evidence. Gustafson declares that after the verdict in the case, and after the discharge of the jury, he had a conversation with the juror Long, in which Long told him that during the trial of the cause he had visited the place of the accident, and made an examination of the track and rails, from which examination he became reasonably certain of the way in which the accident had happened; that by reason of this visit he was the only one of the jurors familiar with the scene of the accident, and thereby became able to show, and did show, his fellow-jurors, in their delibera- " tions, how, in his judgment, the accident occurred. This affidavit was properly refused admission in evidence. While it is not, in terms, an affidavit by a juror impeaching his own verdict, it is an affidavit of admissions made by a juror to the same effect. If the juror himself would not have been permitted to make affidavit directly to these facts, clearly the affidavit by another, of his declarations and admissions, offered for the same purpose, would be equally inadmissible. What the juror could not do directly could not thus indirectly be effectuated. However the rule may be in other states, it is settled in this beyond controversy that a juror may impeach his own verdict upon no other ground than that designated by the code. (Code Civ. Proc., sec. 657, subd. 2. See Boyce v. California Stage Co., 25 Cal. 463 ; Polhemus v. Heiman, 50 Cal. 438 ; People v. Gray, 61 Cal. 183 ;^[2] People v. Deegan, 88 Cal. 602 ; People v. Azoff, 105 Cal. 632 ; Saltzman v. Sunset Telephone Co., 125 Cal. 501 .)

It is sought by respondent, upon this motion, to make a dis

In the instructions complained of, the court charged the jury as to the responsibility of defendant company for latent defects in the wheel. It is said by Shearman and Redfield, in their work on Negligence (sec. 497): “ Whether he [defendant] is responsible for defects which could not have been thus discovered after the vehicle came into his possession, but could have been discovered by the use of such tests during the process of manufacture, is a question upon which there is a difference of opinion. In New York it has been distinctly held that he is. It was so held in England many years ago, but in later cases the question has been purposely left open. In Massachusetts and Scotland, it is held that he is not.” Of the New York cases bearing upon this question may be cited: Hegeman v. Western R. R. Co., 13 N. Y. 9 ;^[2] Alden v. New York etc. Ry. Co., 26 N. Y. 102 ;^[3] Birmingham v. City of Brighton Ry. Co., 59 Hun, 538 . In this state, the rule as laid down in New York has been adopted. (Treadwell v. Whittier, 80 Cal. 574 .^[4] )

We perceive no error in the rulings of the court complained of in admitting or rejecting evidence.

For the foregoing reasons the order appealed from granting defendant a new trial is reversed.

Temple, J., Harrison, J., Garoutte, J., and Van Dyke, J., concurred.

Rehearing denied.