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COOK v. LOS ANGELES RY. CORPORATION.*
Plaintiff appeals from (1) a judgment entered after trial before a jury in an action to recover damages for personal injuries, and (2) an order striking certain affidavits filed in connection with her motion for a new trial.
The material facts are:
Plaintiff was injured while alighting from a street car owned and operated by defendant. There was testimony that the street car was standing still at the time plaintiff attempted to leave it, and there was also testimony that the car after stopping had started with a jerk just as she was alighting from it.
After the case had been submitted to the jury and several hours of deliberation had ensued, the jury returned to the courtroom and the following occurred:
“The Court: Who is your foreman?
“The Foreman: Right here, your Honor.
“The Court: What is the trouble?
“The Foreman: We would like to have that part of your instructions read—
“The Court: There is only one instruction to be given you, and that is, now did this street car stop and start according to the plaintiff's evidence, or did she fall off by slipping or some other thing? That is all you have got to figure out. You should not be over fifteen minutes at most.
“The Foreman: There seems to be a difference of opinion.
“The Court: That is all I am giving now. I will give you ten minutes more to fix it up, because I am not going to keep you here longer on a simple question like that. I don't know what you would do with a complicated case if one as simple as this confuses you. You have got the evidence of people that said the car did not start. You have the evidence of the women or man who was on the street car, or the boy, who said it did start. It is up to you what followed. That is all there is to this case, ladies and gentlemen of the jury. It is as plain as the nose on your face. Go back and see what you can do.
“The Foreman: All right, your Honor.”
Thereafter the jury retired and within a few minutes returned a verdict in favor of the defendant.
On motion for a new trial two affidavits were upon motion of defendant stricken from the record: (1) an affidavit of plaintiff's attorney stating that the instruction to the jury set forth above had been given by the trial judge “in language of firm tone and firm manner”; (2) an affidavit of the foreman of the jury relative to the ballots which the jury had taken prior to the occurrence set forth above, and also to the effect that the jury had requested the foreman to have the trial judge reread the instructions.
These are the questions necessary for determination:
First: Is an order striking from the record affidavits filed in connection with a motion for a new trial appealable?
Second: Did the trial court commit prejudicial error in instructing the jury as follows: “There is only one instruction to be given you, and that is, now did this street car stop and start according to the plaintiff's evidence, or did she fall off by slipping or some other thing? That is all you have got to figure out. You should not be over fifteen minutes at most. * That is all I am giving now. I will give you ten minutes more to fix it up, because I am not going to keep you here longer on a simple question like that. I don't know what you would do with a complicated case if one as simple as this confuses you. You have got the evidence of people that said the car did not start. You have the evidence of the women or man who was on the street car, or the boy, who said it did start. It is up to you what followed. That is all there is to this case, ladies and gentlemen of the jury. It is as plain as the nose on your face. Go back and see what you can do.”
Third: Was it prejudicial error for the trial court to strike from the record the affidavits of plaintiff's attorney and the foreman of the jury filed in connection with her motion for a new trial?
The first question must be answered in the affirmative. The law is established in California that an order striking from the record affidavits filed in support of a motion for a new trial is a special order made after final judgment, and as such is appealable. Sec. 963, subd. 2, Code Civ.Proc.; Gay v. Torrance, 145 Cal. 144, 147, 78 P. 540. The statement to the contrary in Melde v. Reynolds, 120 Cal. 234, 238, 52 P. 491, has been overruled by the Supreme Court by the later decision in Gay v. Torrance, supra.
The second question must be answered in the negative. In view of the evidence which had been received the question of whether defendant was guilty of negligence depended upon a determination of the fact whether the street car after stopping had started or not at the time plaintiff was injured. The instruction containing as it did the phrase, “That is all I am giving now”, though not artfully worded, could not have misled the jury nor caused it to believe that it was to disregard the previous instructions given, which plaintiff concedes were entirely adequate.
In view of the simple question presented to the jury for determination, though we do not approve of the procedure followed by the trial judge, we perceive no prejudicial error resulting to the plaintiff from the time limit placed upon their deliberations by him. The time the jury should be allowed for deliberation was a matter resting in the sound discretion of the trial judge, and no abuse of such discretion has here been shown.
The final question must also be answered in the negative. The statement in the affidavit filed by plaintiff's attorney that the trial judge had given his instruction in language of firm tone and firm manner was purely the statement of a conclusion, and, therefore, the affidavit was properly stricken. The law is settled that a juror may not impeach the verdict of a jury of which he was a member, except upon the single ground that the verdict was the result of a resort to determination by chance. Sec. 657, subd. 2, Code Civ.Proc.; Kimic v. San Jose–Los Gatos, etc., Ry. Co., 156 Cal. 379, 397, 104 P. 986; Leonard v. Hume, 5 Cal.App.2d 41, 43, 41 P.2d 965; 24 Cal.Jur. [[[[1926] 877, sec. 126. Hence, the affidavit of the foreman of the jury was also properly stricken from the record.
For the foregoing reasons the judgment and order appealed from are and each is affirmed.
I dissent. The court should have permitted the foreman to state what instructions were required. “The information required must be given *”. (Sec. 614, Code Civ.Proc.) Instead of giving the information sought the court told them that only one instruction would be given and in doing so stated the evidence incompletely, inaccurately and indefinitely.
The instruction of the court was almost tantamount to a direction to return a verdict for defendant. The foreman stated, in effect, that the jury was divided on the question of liability. Immediately following this statement by the foreman the judge said to the jury: “I will give you ten minutes more to fix it up * it is as plain as the nose on your face. Go back and see what you can do.” It would not have been possible for the jury to return a verdict in favor of plaintiff in the time allowed since more than ten minutes would have been necessary to agree on the amount of the damages. That the jury were convinced that the court was urging a verdict for defendant is evident from the fact that they did return a verdict for defendant in ten minutes, whereupon the court said: “Thank you, ladies and gentlemen of the jury. I do not see how you could have arrived at any other verdict.”
McCOMB, Justice.
I concur: CRAIL, P.J.
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Docket No: Civ. 11913
Decided: December 02, 1938
Court: District Court of Appeal, Second District, Division 2, California.
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