411 F. 2d 778 - Southern Pacific Company v. C Francois

Appellant's boxcar doors fell on the appellee. The jury returned a verdict in favor of appellee for $30,700.

Appellant specifies two errors. During the voir dire examination of the jury panel, the judge, while questioning one of the jurors concerning his occupation, ascertained that the man worked around and in boxcars. He asked him generally whether he would require the parties to meet their respective burdens of proof. Following this, the judge asked the juror whether he had any opinion as to what caused the accident, a proper and appropriate question. The prospective juror replied: 'I've seen a lot of boxcar doors fall off.' Appellant objected, the trial judge instructed the jurors to disregard the remark and excused the juror.

Another juror, called later to replace someone who had been successfully challenged, also had worked around boxcars. The judge asked if he opened the boxcars himself, again an appropriate question to ascertain the degree of familiarity he had with the problem in the case. The juror responded: 'I had men to open them, and I opened them, yes, sir. I have seen doors fall off. I have had doors fall off.' Objection was made by appellant, coupled with a suggestion that a new panel of jurors be drawn. The colloquy which followed is set out in the margin.1

The responses of the jurors do not constitute reversible error in this case. Given the colloquy in front of the jury between the judge and appellant's counsel, note 1, supra, the failure directly to admonish the jury to disregard the second remark was not sufficient to require a new trial.2

Appellant claims to have been prejudiced by a conversation between appellee's wife and one of the women jurors,3 which occurred the second day of the trial on a bench in the hall in front of the courtroom in the presence of other jurors, witnesses, and a Southern Pacific representative. Appellant's counsel saw the conversation and immediately notified the judge, who came out into the hall and observed the situation for himself. The judge called to his chambers the juror involved and discussed the incident. She told him that the conversation had to do with children-- her children and the children of appellee. Appellant moved for a mistrial. The judge reserved ruling until a verdict was entered and formal motions filed, then denied the motion.

To warrant a reversal the contact with the jury must afford reasonable grounds to question the fairness of the trial or the integrity of the verdict. Annot., 64 A.L.R.2d 158, 165-66 (1959). Stated differently, 'the solution of this question does not require a positive finding that the jury was actually influenced by what took place; but rather involves a determination as to whether or not it was reasonably certain that they were not.' Paramount Film Distributing Corp. v. Applebaum, 217 F.2d 101 (5th Cir. 1954), cert. denied, 349 U.S. 961, 75 S.Ct. 892, 99 L.Ed. 1284 (1955).

The only tangible evidence to which appellant refers in attempting to show prejudice is the amount of damages. Appellant requested over $345,000 in damages, and was awarded slightly over $30,000. There was testimony that he incurred a ten per cent disability. No attack has been made on the sufficiency of the evidence to support the verdict.

The trial judge was in the best position to weigh the possibility of prejudice from the conversation. It was not clandestine, and others were present or nearby, including a Southern Pacific representative. The judge himself observed it and promptly interrogated the juror about it. We cannot say that he abused his discretion in denying the motion for mistrial.

Affirmed.