
    No. 903
    PENNA. R. R. CO. v. THOMAS
    U. S. Appeals, 6th Circuit
    No. 4046.
    Decided Nov. 14, 1924
    683. JURY—Where nondisclosure of facts by juror on voir dire, is contributed to by defendant in the respect that its question was not asked perfectly, it cannot complain of such nondisclosure.
    Attorneys—Squire, Sanders & Dempsey for Company; R. H. Dawson and Day & Day for Thomas; all of Cleveland.
   PER CURIAM.

Prank Thomas obtained a verdict against the Railroad Co. in the District Court for the Eastern Division of the Northern District of Ohio, for the loss of his leg while working as a brakeman.

The Company moved for a new trial on the ground that one of the jurors had long before suffered a similar accident, and had by adjustment, without suit, received some compensation from his employer railroad. The Company claimed that it would have challenged peremptorily if the juror had not misled it on the voir dire. The motion for a new trial was overruled and error was prosecuted to the Circuit Court of Appeals which held:

1. Putting the facts most strongly for the Company, this misleading consisted in the jur- or’s negative answer to the question; “Have you any case pending, or did you ever have any, for presonal injury?”

2. It is apparent that any misunderstanding was primarily due to the insufficient form of the question and any non-disclosure was as much the fault of counsel for the Company as that of the juror.

3. With that background, it could not be said that there was abuse of discretion in denying the motion for a new trial, at least not unless the ultimate prejudice was very clear which it is not.

4. The juror’s experience nearly 30 years before might have set him against all railroads, or might have emphasized in his mind the common recklessness of brakemen.

5. The existence of substantial prejudice affecting the verdict is speculative; and the Company had no absolute right to complain of the non-disclosure to which it contributed.

Judgment affirmed.  