Wallace v. Inhabitants of Columbia , 48 Me. 436 ( 1860 )

The opinion of the Court was drawn up by

Davis, J,

Traverse jurors must be sworn in the order of their names upon the alphabetical lists. The first twelve constitute the first jury; the next twelve the second. If, at any time during the term, there are no supernumeraries present, and there is a vacancy on either panel, we have no doubt it may be filled by causing a talisman to be returned, instead of transferring one from the other jury. But a juror pan be thus returned from the by-standers only for some particular case then to be tried, for which alone he should be sworn. If the occasion for a talisman recurs, one should be returned and sworn again, as before. If jurors are wanted for the term, new venires should be issued therefor. R. S., c. 82, § 68.

The juror objected to was not properly returned, nor sworn, in the case at bar. But the facts were known to the defendants before the trial; nor does it appear that they were injured by the irregularity. It was too late for them to make the objection afterwards. R. S. c. 82, §§ 73, 74.

The action is for damages occasioned by a defect in a highway which the defendants were bound to keep in repair. It is urged, that the way was safe and convenient for travel, and that the verdict is against the evidence. There was testimony upon both sides; the question was one for the jury entirely; and, whatever we might think, from the report of the evidence, it does not so clearly appear that the verdict was the result of any bias, prejudice, or mistake, that it should be set aside by the Court.

It is said that the damages were excessive. It would not be easy for the .Court, in a suit for personal injuries, which were said by some of the witnesses to be permanent, to revise the estimates of the jury, if we knew what they were. But neither from the report, nor from the arguments of counsel, can we ascertain what the amount of the verdict was. The elements which are the basis of it are so intangible, that it ought not to be set aside for being too large, unless it is so excessive as to justify the conclusion that the jury were influenced by improper considerations. Motion overruled.

There should have been no ruling upon the motion at Nisi Frius. R. S., c. 82, § 33. Exceptions dismissed.

Tenney, C. J., Appleton, Cutting, May and Kent, JJ., concurred.