Karner v. Kansas City Elevated Railroad

109 P. 676, 82 Kan. 842, 1910 Kan. LEXIS 350

• Court: Supreme Court of Kansas
• Decided: June 11, 1910
• Docket: No. 16,576
• Status: Published

Opinions

Per Curiam:

The plaintiff sued a street-railway company on account of injuries received in a collision, alleging negligence in running at too high a rate of speed. Contributory negligence was relied on as a ground of defense. A verdict was returned for the defendant, and the plaintiff appeals. When the jury had been out a short time the court called them in and urged upon them the desirability of their reaching an agreement. Soon afterward he gave them the same admonition in stronger terms, saying, among other things:

“I think you have failed to read your instructions as much as you should have read them, and learn from "them that when, you can not decide a matter in favor of the party who has the affirmative, because the weight of the evidence is not that way, you should decide the other way. . . . You can see the necessity for your making some strenuous effort to come to an agreement upon that doctrine that when a party has the affirmative of an issue, if the evidence does not show that party is entitled to recover you must find the other way; find against that party.”

It is contended that this language was likely to be, and in fact was, understood by the jury to mean that if as a body they could not agree that the plaintiff had shown a right to recover, then it was the duty of all to' unite in a verdict for the defendant. We do not think the words of the court were fairly open to that construction or that it is probable they were so interpreted. They seem intended merely to emphasize the principle that it is the duty of a juror to find against the party having the affirmative of an issue, unless in his judgment the contention of such party in that respect is supported by a preponderance of the evidence. The occasion for such emphasis does not appear, but as the burden of proof rested upon the plaintiff as to the defendant’s negligence, and upon the defendant as to that of the plaintiff, the court may have thought there was likelihood of a misapprehension and so directed especial attention to the written instructions in that regard. A juror made affidavit that he was misled by the language of the court, but of course it was not competent for him to impeach the verdict in this manner.

The court went quite far in seeking to impress upon the jury their duty to agree if possible, but not so far as to constitute coercion or otherwise amount to reversible error. Complaint is made that the first admonition to the jury was given in the absence of, and without notice to, the plaintiff or his attorney. His attorney was present when the language most strongly objected to was used, and his absence on the prior occasion could not have resulted in material prejudice to his client.

A further ground upon which a reversal is asked is that during the deliberation of the jury one of its members told the others “that he had been a railroad man and knew how long it took to stop an engine and train, and how far a train would run in stopping when running at a certain speed, and advanced that fact in his argument to the other jurors as an argument against the plaintiff’s right to recover.” Just what bearing the statements of the juror had upon the controverted facts is not shown. Possibly he argued the speed of the street car from the distance within which it was stopped, in the light of his experiences as to the time taken' to stop railroad trains. His personal knowledge was not so closely related to the subject under consideration as to justify us in saying that the plaintiff suffered substantial prejudice from its communication to the jury.

Error is also assigned in the giving and refusing of instructions, but the charge as a whole seems fairly to have covered the law of the case, so far as the record ■discloses.

The judgment is affirmed.