
    Alfred Jefson, Plaintiff, v. Crosstown Street Railway, Defendant.
    (Supreme Court, Erie Trial Term,
    May, 1911.)
    Negligence — Contributory negligence — Careless driving by person injured.
    New trial — Grounds — Misconduct of or affecting jury—Estoppel or waiver.
    It is a ground for a new trial that a juror was incompetent by reason of interest, relationship or otherwise, if, on proper inquiry, he denied or concealed such ground of objection on his voir dire examination.
    Where the affidavit of one of plaintiff’s attorneys, on motion for a new trial, stated that, when he asked a juror on his voir dire examination whether he knew the attorney for the defendant, he answered that he knew Mm slightly, and another of plaintiff’s attorneys made an affidavit stating that the juror said on such examination that he belonged to an organization of which defendant’s attorney was a member, and it further appears that in 1901 the juror and defendant’s attorney had been officers in the same Masonic lodge and had been closely associated in the lodge for twenty years, the extent of the relation between them not having been further inquired into, a motion for a new trial will be denied, it appearing that one of plaintiff's attorneys had been a Mason for years and had attended the same lodge and at the time of the examination of the juror was acquainted with his Masonic -relations with defendant’s attorney.
    The affidavits of jurors alleging their misconduct in viewing the premises and alleged occurrences in the jury room cannot be received to impeach their verdict.
    Where plaintiff riding in an automobile running at the rate of fifty or more miles an hour was thrown from his machine by its collision with a bundle of newspapers placed in the street by defendant, he cannot recover for personal injuries, the proximate 'cause of the accident being, not the nuisance in the highway created by defendant, but the reckless and unreasonable use thereof by the plaintiff.
    The mere fact that plaintiff rode in the automobile 1,500 feet in something like 20 seconds, without remonstrance or even suggestion to the driver that he stop the car or slacken its speed, imputes to him the driver’s negligence or carelessness and renders him answerable therefor.
    
      Motioh by plaintiff for a new trial upon the court’s minutes, and upon affidavits charging improper conduct of trial jurors, etc.
    Hamilton Ward, for motion.
    Roscoe M. Mitchell, opposed.
   Brown, J.

It is a ground for a new trial that a juror was incompetent by reason of interest, relationship or otherwise, if such ground of objection was denied or concealed by the juror on proper inquiry on his voir dire examination. The affidavit of Hamilton Ward states that he asked juror Butler on his voir dire examination whether he knew Mr. Penny who is both president and attorney for the defendant; that the said Butler replied that he knew Mr. Penny slightly — about the same as he knew him, Ward. Mr. Ward also states that he had no acquaintance with the said Butler and did not know his name when he appeared upon the panel, although he might have met him in a casual way, and that such statement of .the said Butler as to the slightness of his acquaintance with the said Penny was an inducing cause for allowing said Butler to sit as a juror. The plaintiff in an affidavit says: “Hamilton Ward, deponent’s counsel herein, asked said Butler if he knew Mr. Penny, the president of, and one of the attorneys for, the defendant herein; that said Butler replied that he only knew Mr. Penny slightly; that he did not know said Penny any better than he knew said Ward.” . Andrew B. Grilfillan, the attorney for the plaintiff, in an affidavit says: “ That said Butler stated, in answer to questions of Hamilton Ward, that he belonged to an organization that said Penny belonged to and in that way he knew Mr. Penny, but that he knew him only slightly; that he did not know him any better than he knew said Ward; that the fact that he knew Mr. Penny would make no difference in this case and that of course it ought not to.” It is further stated in the affidavit of plaintiff’s attorney, upon information and belief, that the statements above quoted as having been made by juror Butler to Mr. Ward on such examination were untrue; that the said Butler was well and intimately acquainted with the said Thomas Penny and had known him intimately and well for many years; that from 1893 to 1901, inclusive, the said Butler and Penny were both active sitting officers in a Masonic lodge in Buffalo, the said Butler being the senior of said Penny by one office; that in 1901 the said Butler was master and the said Penny was senior warden of the said lodge; that the said Butler and the said Penny are now and have been for the past twenty years members of and closely associated in said lodge. The sources of the information and the grounds of the belief as. to such intimate relations are stated to be the published history of said Masonic lodge.

Upon the assumption that the statements above set forth were made by juror Butler to plaintiff’s counsel, and that the facts exist as stated in the affidavit of plaintiff’s attorney, the question is presented, whether the juror denied or concealed such relations with Mr. Penny as are established in the affidavit of Mr. Gilfillan, from Mr. Ward, upon his voir dire examination, upon proper inquiry. It is to be observed that juror Butler did state that he belonged to an organization to which Mr. Penny belonged, and that in that way he knew Mr. Penny; that he knew Mr. Penny slightly, about the same as he knew Mr. Ward. It cannot be said that the juror denied or concealed the fact that he and Mr. Penny, from 1893 to 1901, were both active sitting officers in a Masonic lodge. When juror Butlor stated that he belonged to the same organization of which Mr. Penny was a member, it would seem that it then became the subject of proper inquiry for more information as to the relations between the juror and Mr. Penny. It does not appear whether the subject of membership in the organization was volunteered by the juror or developed by plaintiff’s counsel. It is quite clear that an inquiry as to what organization was referred to would have developed its name and character. The fact that Mr. Penny and the juror Butler were sitting officers in the same lodge for years is not proof that his acquaintance , with Mr. Penny was of such a degree of intimacy that it was concealed by the statement of juror Butler that he knew Mr. Penny slightly, about the same as he knew Mr. Ward. The juror Butler makes an affidavit in which he states that Mr. Ward did not ask him as to his acquaintance with Mr. Penny; but, assuming that. the version as given by Mr. Ward, Mr. Gilfillan and the plaintiff of the examination of juror Butler is an acceptable one, such version must be considered in connection with the facts set forth in the affidavits of Preston M. Albro and the juror Butler, wherein it appears that Mr. Ward for years was assistant to Mr. Penny as district attorney of Erie county, has been a member of such Masonic fraternity for years, has attended the same lodge with .juror Butler and, at the time of the examination of the proposed juror, was acquainted with the Masonic relations between Mr. Penny and Mr. Butler, and when Mr. Butler stated that he belonged to the same organization as Mr. Penny it was the giving of information that disclosed all that could he fairly expected under the circumstances. I am unable to see how the conclusion can he. reached that juror Butler denied or concealed his acquaintance or relation with Mr. Penny, on proper inquiry, so as to afford reasonable ground for a new trial. McGarry v. City of Buffalo, 53 N. Y. St. Repr. 882; Fealy v. Bull, 11 App. Div. 468.

The alleged misconduct of jurors in viewing the premises, and the alleged occurrences in the jury room complained of, have not been established by competent evidence. It is well settled by abundant authority that affidavits of jurors will not be received to impeach their verdict; they are only competent to sustain a verdict. Webber v. Reynolds, 32 App. Div. 248; Haight v. City of Elmira, 42 id. 391; Buffalo Structural Co. v. Dickinson, 98 id. 355; Gans v. Metropolitan St. R. Co., 84 N. Y. Supp. 914; Thomas v. Chapman, 45 Barb. 98; Dittman v. City of New York, 58 Misc. Rep. 52; Hanor v. Housel, 128 App. Div, 801; Gregory v. Bijou Theater Co., 138 id. 590; Zint v. Mulligan, 140 id. 230.

The jury was charged that the placing of the bundles of newspapers in the street by the defendant created a nuisance, and that the defendant became liable to plaintiff for his injuries, provided the plaintiff was in a reasonable use of the highway and the newspaper bundles were the proximate cause of the accident; that, if the plaintiff was in an unreasonable use of the highway, then he was called upon to use ordinary care to avoid an injury by colliding with such an object in the street. It was practically conceded on the trial that the automobile collided with a bundle of papers, ran seventy or eighty feet, struck an iron trolley pole nine inches wide and seven inches thick, made of quarter-inch, rolled iron, breaking such pole square off six inches above .the pavement, turned twice around after colliding with the pole, breaking the body loose from the frame and practically destroying the automobile. It was established beyond question that this automobile, running at the rate of twenty miles an hour, could be stopped within thirty feet. It was a fair, legitimate inference for tkjb jury that the plaintiff was thrown from the automobile by the collision with the trolley pole by reason of the terrific impact; and that, had plaintiff been going at a reasonable rate of speed, he would have received no injury from the collision with the newspapers. The fact that the defendant created a nuisance in the highway does not make it liable to one who, in a reckless and unreasonable use of the highway, is injured by the nuisance. And while it may be that, in an action for damages occasioned by a nuisance, the plaintiff is not obliged to prove an absence of contributory negligence, yet, if it appears that the recklessness of the injured person was the proximate cause of the injuries, all authorities hold that there can be no recovery. The evidence would warrant a finding that the automobile was rushing through the street at the rate of fifty or more miles an hour, and the only wonder is that all the occupants were not instantly killed. The plaintiff, participating in such insané business, cannot be heard to say that he was not called upon to exercise any care, and that while in such unreasonable use of the highway he had a right to assume that the highway was safe. The mere fact that plaintiff rode in the automobile 1,500 feet from Delavan street to Jefferson street in something like twenty seconds, without remonstrance or even a suggestion to the driver that he stop the car or slacken its speed, places on the plaintiff all the recklessness or contributory negligence needed to sustain a finding of a jury that he was in an unreasonable use of the highway; and his failure to attempt to restrain the driver from pursuing such a madcap pace would warrant the jury in finding .complete acquiescence on his part in the driver’s negligence or carelessness, and render him answerable therefor.

Motion denied.  