Shepherd v. Inhabitants of Camden , 82 Me. 535 ( 1890 )

Libbey, J.

This case was tried at nisi prius, on the petition of the plaintiff for damage to his lands by reason of a change of grade, in the street passing by them. The verdict was for the defendant. The case comes before this court on two motions. First, to set aside tbe verdict as against evidence. Second, for a new trial on the ground of newly-discovered evidence.

As to tbe first motion, we think the evidence reported .preponderates in favor of the plaintiff for some damages. But there was evidence on both sides, submitted to the jury, and the preponderance is not so great as to satisfy us that the verdict was the result of bias or prejudice of the jury, or of any mistake made by them. Furthermore, we have not before us all the evidence which the jury had to act upon. They properly viewed the premises ; and they had a right to take into consideration what they saw of their situation, — to what extent, in their judgment, the change of the grade in the street affected the value of the plaintiff’s premises. In such a case, the court hesitates to set aside the verdict.

As to the second motion, it is based wholly upon alleged misconduct of jurors while having the case under consideration after they retired to their room, and while they were together during the view of the premises. It is alleged that two of the jurors communicated to their fellows, facts known by them which influenced their action. The evidence offered to support the motion is the testimony of the two jurors in regard to the alleged misconduct, and of several witnesses, who testify to the declarations of the two jurors to them out of court and after the verdict was rendered. The evidence was taken after the adjournment of the court before a commissioner appointed for the purpose, subject to any legal objection that might exist to it.

We think it clearly settled that neither the testimony of the jurors, nor their declarations out of court after the verdict are competent evidence to prove the irregularities alleged in the motion. Commonwealth v. White, 147 Mass. 76; Greeley v. Mansur, 64 Maine, 211; State v. Pike, 65 Maine, 111.

With this evidence excluded there is no evidence to sustain the allegations in the motion. We think both motions must be overruled.

Motions overruled.

Peters, C. J., Walton, Yirgin and Haskell, JJ., concurred.