
    Clarence L. Rippley, Appellant, v. Frederick Frazer, Respondent.
    Fourth Department,
    March 6, 1912.
    negligence — injury to electrician repairing elevator—contributory negligence —trial —inadvertent discharge of jury— direction to jury to retire after discharge — when no mistrial.
    Action to recover for personal injuries. The plaintiff, an electrician, sent to repair electric lights on a passenger elevator, while seated on the top of the car was crushed against the top of the shaft when the car ascended to the top floor. He had previously examined the situation and knew of the danger, having requested the operator of the elevator not to go above the sixth floor which he had promised not to do. It appeared that the plaintiff could just as well have stepped from the elevator before it started and that he eould do no work while it was running. On all the evidence,
    
      Held, thatthe jury were justified inflnding the plaintiff guilty of contributory negligence.
    The trial court submitted to the jury the question of the defendant’s negligence and the contributory negligence of the plaintiff and the amount of damages as three specific questions of fact, stating that they need not answer as to damages should they find in the defendant’s favor on either of the two first questions. During their deliberations the jury found the defendant negligent and the plaintiff guilty of contributory negligence but could not agree on the question of damages. On the following day the foreman informed the court that the jury had not agreed upon a verdict, had answered the first two questions but not the last one, whereupon the court believing that the first questions had been decided in favor of the plaintiff, discharged the jury, but upon learning immediately that they had found the plaintiff guilty of contributory negligence and the defendant negligent, he directed the jury to again retire and bring in their verdict on the first two questions which they did, the court thereupon directing a judgment for the defendant.
    
      Held, that the action of the court in directing the jury to retire was proper under the circumstances and that there had been no mistrial.
    Appeal by the plaintiff, Clarence L. Rippley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the country of Onondaga on the 15th day of March, 1911, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term, certain questions of fact having been submitted to the jury, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.
    
      J. David Enright, for the appellant.
    
      Clifford H. Searl, for the respondent.
   Kruse, J.:

The plaintiff, a electrician, was sent by his employer to repair the electric lights in the defendant’s apartment house, in which there was an elevator. The elevator was lighted by a lamp connected with an electric cable, which extended from a fuse box at the fourth floor and entered the elevator at the top, where a break was discovered. The plaintiff sat on top of the elevator, repairing the cable. He knew that if the elevator went to the seventh floor he would be squeezed between the top of the elevator and the ceiling of the elevator shaft. He had looked over the situation there and had called the elévator boy’s attention to it, as he says. He told the elevator boy not to rim. above the sixth floor and the elevator boy promised not to do so. But the boy forgot and ran to the seventh floor, to take a lady passenger there, and plaintiff was hurt. He says the elevator boy was careless, and so the jury found, and probably without difficulty; but the jury also found that the plaintiff himself was lacking in care and caution.

The plaintiff could just as well have stepped from the elevator before it started. He could not work while it was running. The top of the elevator was opposite or near the floor above the one where the passenger entered, and all that he would have had to do was to open the door and step out. He chose to remain. He also knew, if he was observing, that after the boy passed the sixth floor he would probably go to the seventh. He knew he had a passenger. But he says that he paid no attention to whether the boy was following instructions not to go beyond the sixth floor, and he did not know at what floor they were until he was struck.

It is unnecessary to refer to other circumstances, either for or against the claim of contributory negligence. The trial court submitted that question with the others to the jury, in a charge that was apparently satisfactory to the plaintiff, and I think the jury was warranted in finding that the plaintiff himself was not free from contributory negligence.

I have given a mere outline of the evidence. There is, however, another question in the case which requires further attention. The presiding judge told the jury that he would not ask them to render a general verdict, but to answer specific questions in writing. He submitted three questions: (1) Was the defendant guilty of negligence which caused the accident? (2) Was the plaintiff guilty of contributory negligence ? (3) What damages were caused to plaintiff by the accident complained of ? stating that they need not answer the last question if they should find either that the accident was not occasioned by the elevator boy’s negligence or that it was occasioned in whole or in part by the plaintiff’s negligence. But the jury evidently misapprehended, or forgot that it was unnecessary to answer the last question, in the event that they found against the plaintiff upon either of the others. Instructions had been given to the officer in charge of the jury that if they did not agree by a certain time in the course of the evening to discharge the jury. The jury had agreed among themselves that the elevator hoy was negligent, and also that the plaintiff himself was guilty of contributory negligence, but had not agreed upon the third question, as they thought necessary to do. The officer was informed that they had not agreed and thereupon, at the appointed time, the jury was permitted to go. The next morning, at the opening of court, they were called, and the record shows the following proceedings: Clerk of the Court: Gentlemen of the jury, have you agreed on a verdict and answered the questions submitted to you by the court ? Foreman of the jury: We have not. We have answered the first two questions and not the last one. The Court: Not the last one? Foreman of the jury: No, sir. The Court: Jury discharged.”

In this connection it should be stated that immediately after the court had discharged the jury the foreman stepped up to the judge and asked to be excused from service for the afternoon, which was granted. He then asked whether, if the jury had found in favor of the defendant on either one of the first two questions, it was necessary for the jury to decide the third, to which the judge replied: “ Did you do that ?” and immediately directed the jury to return to the jury box. Then occurred the following: “Clerk of the Court: Gentlemen, please take your seats again. The Court: I think I had better examine that verdict. Gentlemen, I think I will take your verdict and see what it is. Foreman of the jury: We didn’t seal the verdict because we didn’t finish it. That is they agreed so far and didn’t finish the last question. The Court: Gentlemen, you may retire and bring in a verdict on the two questions upon which you did agree. (Jury retired.) ” The jury returned with a verdict in writing, answering both questions in the affirmative, and thereupon the judge directed judgment in favor of the defendant.

It is unnecessary to follow through the colloquy between the court and counsel for the respective parties, after the jury retired, or to state in detail the contents of the affidavits of the jurors and others, relating to what occurred in and out of the jury room. It is sufficient to say that it very clearly appears that the jury had agreed upon the verdict which they finally rendered before they were discharged by the officer the evening before, and the reason they did not then reduce to writing and seal their verdict was because of the misapprehension to which I have called attention. And it is also very clear that between the time they were permitted to go by the officer and returned to the jury box in the morning nothing occurred which in any way could have influenced them in their final report, even if they had not agreed until their final meeting in the morning. The trial judge states that in discharging the jury it was not a mere slip of the tongue, but was his deliberate act, believing that in view of his charge the jury had answered the first two questions in favor of the plaintiff and had been unable to agree on the amount of the verdict. And from the colloquy and the position taken by the respective counsel during the colloquy, it is evident that they also believed that the jury had found for the plaintiff, even up to the time when they were sent back, although the judge, evidently, suspected from the interview with the foreman (which, I assume, counsel did not hear) that his belief was not well-founded. The judge saw to it, however, that each counsel was amply protected by proper exceptions, so as to enable either to attack the verdict, which plaintiff’s counsel did as soon as the verdict was rendered, contending that the court had no power to direct a jury to again retire, after they had separated and after he had discharged them, and that a mistrial had resulted. The judge, after carefully considering the question (Rippley v. Frazer, 69 Misc. Rep. 415), denied the motion for a new trial, and the plaintiff appeals from that order and from the judgment entered thereon.

I think the trial judge was clearly right in sending the jury back and in receiving their verdict. While the judge had publicly announced the discharge of the jury, he almost instantly thereafter recalled that announcement and sent the jury back to report their verdict. Even where a jury have agreed upon a verdict, reduced it to writing and sealed it, and they have separated but not been finally discharged from the case, the jury has been permitted to again retire, consider the case and bring in a verdict for a larger amount than that stated in the sealed verdict. (Warner v. N. Y. C. R. R. Co., 52 N. Y. 437.) But here the jury had already agreed upon the questions which they finally reported, although it had not been announced. All that was left to do was to reduce to writing the special verdict, as the Code requires (Code Civ. Proc. § 1187), and that was a mere clerical act. Courts have gone even farther than here, in obtaining, perfecting and saving the verdict of a jury, after they have separated, where through inadvertence or mistake the result of their deliberations has not been correctly reported or recorded. (Wirt v. Reid, 138 App. Div. 760, and cases there cited.)

I think the judgment. and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  