Daunt v. Cincinnati Traction Co.

19 Ohio N.P. (n.s.) 495

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: January 15, 1917
• Status: Published

Opinion

Cosgrave, J.

This matter comes on to be heard on a motion for new trial which sets forth several grounds therefor, none of which, however, has been very seriously pressed upon the attention of the court except the claim of newly-discovered evidence. This claim is supported by affidavits setting forth the nature of the testimony which certain witnesses would have given if they had been called to testify in the case. Á careful examination of these affidavits, in addition to other reasons, abundantly satisfies the court that they furnish no sufficient grounds for setting it aside. ’They are largely hearsay and argumentative in character, and, justly considered, are of no avail as a basis for a new trial.

The fourth reason is alleged to be misconduct of the jury. The record discloses that certain’interrogatories were put by two of the jurors to two of the witnesses, one a specialist in neurology and the other the conductor of the car. It is possible that, fairly weighed, the questions put by the jurors might indicate, to some extent at least, a fixed opinion on their part as to the merits of the case prior to the close of the evidence. The court is inclined to accept this as the truth in the matter. No objection was interposed by counsel for plaintiff to either the propounding of these questions or to the answers thereto by the witnesses during the trial. Assuming, however, that it would at least have been more satisfactory if these questions had not been put by the jurors, nevertheless there remains the real material question in the case, whether or not the plaintiff made out her case by a preponderance of the evidence. Conceding to the plaintiff every possible force and effect that the testimony in her behalf calls for, the court is impelled to the conclusion that she not only failed in sustaining her contention by a preponderance of the evidence, but that the greater weight of the evidence was manifestly against her contention.

The court being satisfied that the verdict is in accordance with the evidence, and that there was no prejudicial error occurring during the trial, the motion for a new trial will therefore be overruled.