Rasich v. Gladding McBean & Co.

McCOMB, J.

From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries received as the result of plaintiff’s being hit by an automobile driven by the agent of corporate defendant, the latter appeals.

The record discloses that the above entitled action was tried before a jury and a judgment returned in favor of plaintiff against the corporate defendant. Thereafter that defendant’s motion for a new trial was granted on the ground, among others, of the insufficiency of the evidence.

On the second trial, from the judgment in which the present appeal is taken, after the case had been submitted to the jury and while they were deliberating, the bailiff telephoned to the trial judge and said the jury had stood seven to five but then stood six to six and were deadlocked; that the jury could break their deadlock if they were instructed upon a question they would like to have answered. Shortly thereafter, without receiving any additional instructions from the trial judge, the jury returned a verdict in favor of plaintiff. In response to defendant’s argument on the motion for a new trial that the bailiff had given instructions to the jury out of the presence of the court the trial judge made the following statement:

“Now, the only thing that I can see that might have happened was that the proposition was made that they didn’t have to go out to dinner if I could answer a question, and when I said, ‘Yes, definitely,’ it might have been the bailiff,

whom I have not been able to contact to find out from him because I understand he is in the criminal department, that

he answered, ‘Yes, definitely, that I would give that instruction.’ It might have been that a question was asked of the

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bailiff that might have required a ‘yes’ or ‘no’ answer, and he might have answered it.”

*

(Italics added.)

Defendant urges reversal of the judgment on the proposition that

the trial court committed prejudicial error in refusing to give the following instruction requested by it: