Page:Federal Reporter, 1st Series, Volume 6.djvu/857

Rh The plaintiff now moves for a new trial. The plaintiff is the widow and administratrix of Erastus P. Pool, deceased, who lost his life in consequence of personal injuries received in attempting to make a coupling while in defendant's service. The action is to recover damages resulting from the injuries thus received. The plaintiff's counsel have, in support of the motion, insisted on many grounds of law and fact which I deem it needless to consider. I shall confine what I have to say to the alleged misconduct of the jury. In this matter some very material facts relied upon for the motion have been disproved. Others have been so far explained by counter affidavits as to relieve the case of the bad aspect in which it inight otherwise appear to the court. I shall pass all doubtful or disproved facts without notice, confining my attention exclusively to such as have been clearly proved.

It undeniably appears that a number of the jurors during the progress of the trial, passed several consecutive evenings at cards in the room of one of the defendant's counsel, at the hotel where some, but not all, of said jurors were stopping. This was a great and reprehensible impropriety and if it did not clearly appear that the jurors mentioned occupied the room in question without any invitation or inducement from the defendant's counsel; I would not hesitate to set aside the verdict on that ground alone. But it does appear affirmatively, by the aiffidavits which have been filed, that the jurors occupied Judge Trimble's room under peculiar circumstances, which relieve both Judge Trimble and Mr. Blythe, his associate counsel, from any just censure or responsibility. It is due alike to the counsel concerned and to the court that the circumstances referred to should be stated and placed upon record.

It appears that Judge Trimble and Mr. Blythe occupied separate rooms upon the same floor of the hotel. These gentlemen were closely occupied at Mr. Blythe's room till late in the evening of each day during the trial, examining witnesses, and otherwise preparing their defence. Judge Trimble's room was virtually unoccupied by him till a late hour of the night, and not, it appears, till the card party had dispersed.