Tierney v. Charles Nelson Co.

SPENCE, J.

Plaintiff, a seaman, sought damages for personal injuries sustained as a result of alleged negligence on the part of defendant. The jury brought in a verdict in favor of plaintiff in the sum of $9,000. Defendant’s motion for a new trial was denied and defendant has appealed.

It is not necessary to set forth all the facts in detail. For the purposes of this appeal, it is apparently conceded that the evidence was sufficient to support the verdict,

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that no error was committed in the giving or refusing of instructions, that the verdict was not excessive and that there were no errors in the rulings upon evidence except as hereinafter noted. It is therefore sufficient to state preliminarily that, plaintiff was admittedly injured when struck by a wave as he worked on the deck of defendant’s steamship ‘ ‘ Tashmoo ’ ’ while said vessel was in a heavy sea on a voyage to Vladivostok. It was plaintiff’s claim that his injuries were received as a result of defendant’s negligence and there was ample evidence to sustain said claim.

Appellant first assigns as error the action of the trial court in sustaining respondent’s objection to the admission in evidence of the affidavits of Jessie M. Hix, a juror, and of Irving H. Frank, counsel for appellant. Said affidavits were offered on appellant’s motion for a new trial in support of appellant’s claim of irregularity in the proceedings of the jury and misconduct of the jury. The affidavit of Irving H. Frank showed what had occurred on the

voir dire

examination of the juror Kenneth Anderson. It showed that on such examination, said Kenneth Anderson testified that “he had no seafaring experience". He gave his occupation as that of installing blackboards and his only previous occupation as that of real estate salesman. The affidavit of the juror Jessie M. Hix showed that during the discussion in the jury room, said Kenneth Anderson made the statement, “When I was in the Navy you had to do whatever the offeers ordered, and it doesn’t make any difference whether it is dangerous or not."

We find no error in the trial court’s ruling denying admission to said affidavits. We pass, without extended discussion, the question of whether the affidavits, if otherwise admissible, were sufficient to show that said Kenneth Anderson testified untruthfully on his