
    John Joseph Hagen, an Infant, by Michael E. Hagen, his Guardian ad Litem, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Jury trial — what constitutes such coercion of the jury as to require that the verdict he set aside—cha/i'ges of improper motives made Try the plaintiff’s counsel, when the jury fails to agree, which make it the duty of the court to dismiss the jury.
    
    A judge presiding at a jury trial is not bound to accept, as final the statement of the jury that they are unable to agree, and, in determining whether or not the j ury shall be discharged for this reason, he is invested with discretionary power which, when reasonably exercised, should not be interfered with, but where the language or methods adopted by the court to prevent a mistrial in such a case have an obvious tendency to coerce the jury into reaching an agreement, there is an abuse of discretion amounting to an illegal assumption of power upon the part of the court itself which requires the reversal of the judgment entered upon the verdict.
    Upon an appeal from a judgment entered upon the verdict of a jury rendered upon the fourth trial of an action to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, it appeared that the case was submitted to the jury April 25,1902, and that on the evening of that day the trial judge learned, in some undisclosed manner, that the jury stood ten to two; that at half-past eleven o’clock on the morning of April twenty-sixth, which was Saturday, the jury came into court and announced that they were unable to agree. The trial justice urged upon them the necessity of reaching an agreement, saying, among other things, “It would seem, gentlemen, that when a jury stands as it has been stated by some of your number last evening, ten to two, that you ought to agree.”
    The plaintiff’s counsel, in the presence of the jury, then made the following statement: “ It seems to me, if your honor please, in view of the facts of this case, in view of what appeared here yesterday on the part of one of these jurors at least,, that it is idle to send this case back to them. The determination on the part of two men to block the plaintiff’s right in this case; I except to that; I don’t want my case sent back here, and these ten men, if they should be for the plaintiff, dragged into finding á low verdict by this obstructionist upon this jury; we know who he is, and it is an outrage.”
    The court refused to discharge the jury and directed them to retire. Thereupon, and before the jury had retired, the counsel for the plaintiff said, among other things, “I don’t want my case frittered away; I don’t want ten honest men tired out by the action of an obstructionist.”
    The court directed the jury to disregard the remark of the plaintiff’s counsel and the following colloquy then ensued: “ The court: I simply want to say to the jury I want them to harmonize, if they can, and find the truth, and be conscientious about it. (Counsel for the defendant): Based' upon their principles and belief of right. The court: Based upon fair and' reasonable harmonizing between them, without one side threatening to stay there all summer, or anything of the kind; but be conscientious about it, gentlemen. Do right about this. There is no use of frittering and fooling away about this cáse any longer. It has been tried three times, gentlemen. The court has great respect and consideration for the way you have rendered your verdicts on all cases before you at the term of court, and I am satisfied that when you talk this matter over reasonably and fairly between yourselves that you will agree irrespective of what counsel say on either side. Now, you may retire. The foreman: What more prospect is there now of our agreeing, than there was then? The court: I have got faith in the' jury, and I believe they are conscientious men, and that they will get to the right, whatever is right.”
    The jury then retired and at seven-forty-five o’clock on the evening of April twenty-sixth again came into court and reported that they still stood ten to two. The court, upon receiving this report, said: “ Gentlemen, I hardly know what to say to you, but I may say something that may not be very satisfactory to some of you. This case has been tried now four times, and on this occasion it is ~ just and ripe for an honest and just decision. And it is your duty, .gentlemen, to be conscientious and honest in finding the truth that glitters — it glitters in this case, gentlemen. It glitters and shines — and shines into.the hearts and consciences of every honest juryman. I feel as though it was a travesty upon justice that if ten men in a case of this kind are one way and two the other, that there must be something wrong somewhere in the intelligence or in the conscientious action of some jurymen. I feel, gentlemen, that it is an outrage upon decency to keep a jury out in this case when you know and realize where the truth is—keeping men out over night in this case.” The court then directed the jury, over the protest of the defendant’s counsel, to again retire, which they did and, in about half an hour thereafter, came into court and ' reported that they had finally agreed upon a verdict for the plaintiff in the sum of §8,000.
    
      Held, that the verdict was wrung from the jury as the result of the coercive measures adopted by the court, and that the judgment entered thereon should be reversed;
    That the statement of the plaintiff’s counsel as to the standing of the jury and his direct charge that some of their number were influenced in their action by improper motives was most unseemly and disorderly, and made it the duty of the trial justice to dismiss the jury, and that the court’s omission to rebuke such a breach of professional decorum furnished an additional reason for reversing the judgment.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 17th day of May, 1902, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 29th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 11th day of June, 1902, granting to plaintiff an- extra allowance of costs.
    On the 20th day of July, 1895, the Frankfort Mutual Benefit Association of the West Shore shops, which was composed of railroad men residing in and about Frankfort, in the county of Herkimer, arranged for and conducted an excursion to a place known as Sylvan Beach. For this purpose a special train was chartered by a committee duly authorized, and this train was run over and upon the defendant’s road in two sections, one of which was in charge of a man by the name of John Garvey, a member of the association, selected by the defendant.
    The plaintiff, Hagen, who at that time was a lad thirteen years o.f age, was in the employ of a firm which had bought the right to peddle refreshments upon this train, and when Garvey’s section reached Frankfort, on its return from Sylvan Beach, Hagen got on board, and started to walk up the steps at the west end of one of the cars. When he had reached the platform of the car, the evidence tends to show that Mr. Garvey came out of an adjoining car, and ordered Hagen off, telling him that if he did not obey he would kick him off. Hagen then turned around, put both hands upon the railing of the steps, and went down to the bottom step, where he waited about fifteen seconds, more or less, with his left hand upon the railing, when, as he says, there was a sudden jerk of the car which threw him off and he fell to the ground with his feet under the car, and was • so seriously injured that it became necessary to amputate his left leg about three inches above the ankle. His right foot was also crushed, and about ten days later it became necessary to amputate that also at the middle of the instep. .
    At the time Hagen was thrown off in the manner above stated, the train was moving at the rate of five miles an hour, but no claim is made by the plaintiff that the defendant was in any respect negligent in the management of the train, the contention being that he was wrongfully ordered off by Garvey, who was temporarily in charge of the train, but not in the employ of the defendant.
    
      Thomas D. Watkins and William E. Lewis, for the appellant.
    
      William Kennedy and Edward C. Ryan, for the respondent.
   Adams, P. J.:

This cáse has been four times tried and the record therein of the fourth trial, which is now before us, presents one of the most remarkable attempts to secure a verdict which has ever been brought to our attention.

The trial was commenced upon the 23d day of April, 1902,fand the case was given to the jury sometime during the day of the twenty-fifth, but at what hour does not definitely appear. It seems, however, that in.the evening of that day it was in some manner brought to the knowledge of the trial justice that the jury were divided in their views, standing ten for one party and two- for the other. At half-past eleven o’clock on the morning of April twenty-sixth, which was Saturday, the jury came into court and announced through their foreman that they were unable to agree; whereupon the trial justice, after expressing ■ his surprise that there should be any disagreement in á case of this character, said to them: f‘ Now, gentlemen, I do not want to have you feel as though I am hard in this matter at all by keeping you out. But I really feel it my duty to the parties in the case, and in the interest of justice, not to discharge you at this time. It would Seem, gentlemen, that when a jury stands as it has been stated by some of your number last evening, ten to-' two, that you ought to agree. * * * Now, gentlemen, I hope you will retire and take this under consideration. Not get warm about it on the respective sides, but harmonize — harmonize, if you can, and agree, and render in this case a just verdict. Now, gentlemen, you may retire.”

Some further directions on the part of the court were called out by a question from one of the jurors, and before the jury had actually retired the plaintiff’s counsel made the following statement to the court: “ It seems to me, if your honor please, in view of the facts of this case, in view of what appeared here yesterday on the part of one of these jurors at least, that it is idle to send this case back to them.. The determination on the part of two men to block the plaintiff’s right in this case; I except to that; I don’t want my case sent back here, and these ten men, if they should be for. the plaintiff, dragged into finding a low verdict by this obstructionist upon this jury; we know who he is, and it is an outrage.”

To this statement the court replied: “ No, I won’t do that; these jurymen are conscientious and honest men, and I know irrespective of any suggestions with reference to one or two or half a dozen, when they go out and consult in this matter, that they are honest and conscientious men, and that they will arrive at a just verdict. You may retire, gentlemen.”

Thereupon, and before the jury actually retired these further proceedings were had: “(Counsel for the defendant): If your honor please, they may disregard the remarks, any remarks that have been made. (Counsel for the plaintiff): I don’t want my case frittered away; I don’t want ten honest men tired out by the action of an obstructionist. The court: I believe that the jury in this case are conscientious men, and that they will get together in this case. (Counsel for the defendant): I ask your honor to charge the jury that they disregard the last remark. The court: Yes, you may disregard any statement that has been made by the plaintiff’s counsel. (Counsel for the plaintiff) ■; I protest against my case being sent back. (Counsel for the defendant): I assume that in charging the jury in reference to your wish that they get together and agree, that thereby your honor does not intend in any wise to convey the suggestion that if there may be two men in minority that have honest differences and honest principles — The court: I simply want to say to the jury I want them to harmonize, if they can, and find the truth, and be conscientious about it. (Counsel for the defendant): Based upon their principles and belief of right. The court: Based upon fair and reasonable harmonizing between them, without one side threatening to stay there all summer, or anything of the kind; but be conscientious about it, gentlemen. Do right about this. There is no use of frittering and fooling away about this case any longer. It has been tried three times, gentlemen. The court has great respect and consideration for the way you have rendered your verdicts on all cases before you at the term of court, and I am satisfied that when you talk this matter over reasonably and fairly between yourselves that you will agree, irrespective of what counsel say on either side.- Now, you may retire. The foreman: What more prospect is -there now of our agreeing than there was then % The court: I have got faith in the jury, and I believe they are conscientious men, and that they will get to the right, whatever is right.”

Thereupon the jury retired. At seven-forty-five o’clock in the evening of April twenty-sixth the jury again catne into court, whereupon the following proceedings were had: The clerk: “ Gentlemen of the jury, have you agreed upon your verdict ? If so, who shall say for you, and how do you find ? The foreman : No change in the sentiment at all. The court: You say that the jury stands ten to two.? The foreman: Yes. The court: Gentlemen, I hardly know what to say to you, but 1 may say something that may not be very satisfactory to some of you.. This ease has been tried now four times,- and on this occasion it is. just and ripe for an honest and just decision. And it is your duty, gentlemen, to be conscientious and honest in finding the truth that glitters — it glitters in this case, gentlemen. It glitters and shines — and shines into the hearts and consciences of every honest juryman. I feel as though it was a travesty upon justice that if ten men in a case' of this kind are one way and two the other, that there must be something wrong somewhere in the intelligence or in the conscientious action of some jurymen. 1 feel, gentlemen, that it is an outrage upon decency to keep a jury out in this case when you know and realize where the truth is — keeping men out over night in this case.

“ I am obliged to have you go out again, and you may bring in, if you agree, a sealed verdict and return here, if you agree, and after signing your verdict and giving it to your foreman, you can then separate and be here to-morrow morning at eleven o’clock, at which time, when I adjourn,. I will adjourn to.

“ Now, gentlemen, take this case, and when you find and know and realize the truth of it, render your verdict conscientiously, without passion, or prejudice or sympathy. Yon may retire. (Counsel for the defendant): If your honor please, I desire to ask the court that this jury be discharged from the further consideration of this case. And I desire to ask the court to say to them that while the jurors should endeavor to reach a conclusion in this case, they should not do so when such conclusion is against their honest and conscientious convictions and belief. The court: I have so charged. Now, you may retire, gentlemen. (The counsel for the defendant): May I have an exception in there? The court: Not unless you except in the presence of the jury.

“ [An adjournment taken to Sunday morning, April 27, 1902, at 11 o’clock.] ”

The jury thereupon again retired and in about an hour thereafter came into court and reported that they had finally agreed upon a verdict for the plaintiff in the sum of §8,000.

We think'it very clear that this verdict was wrung from the jury as the result of the coercive measures adopted by the court to that end, and that it in no sense reflected the calm, deliberative judgment of the jury themselves.

In saying this we are not unmindful of the fact that the case had already been three times tried without agreement and that the trial court was naturally anxious to avoid the necessity of another trial; but this, in our opinion, did not furnish satisfactory or adequate reason for adopting the unusual methods and for indulging in the very remarkable language employed by the trial justice in his effort to bring about the desired result.

Ordinarily no one but the jurors themselves is supposed to know the result of their deliberations until they have come into court and made a public announcement thereof. Indeed, it would defeat one of the most salutary objects of the jury system if the ban of secrecy were to be removed and the standing of the jury proclaimed to the world before a verdict had been actually agreed upon and rendered; but in this instance it seems to have been not only known by the court and plaintiff’s counsel precisely how the jury stood, but this knowledge was imparted to every one in the court room, and the two men upon the jury who were unable to agree with the majority of their associates were virtually charged with acting from improper motives and told that it was a travesty upon justice and-an outrage upon decency for them to maintain their position any longer; which was in effect a notification to the entire jury that unless some of its members surrendered their private judgment it would result in their being deprived of their liberty for certainly another night, if not longer. This assuredly was coercive to the last degree and was not only prejudicial to the parties, but it was also an act of injustice to the jurors themselves.

It is undoubtedly true that the trial court is not bound to accept as final the statement of jurors as to their inability to agree and that in determining whether or not a jury shall be discharged for this reason, the court is invested with discretionary power, which when reasonably exercised ought not to be interfered with; but it is equally true that where the language or methods adopted by the' court to prevent a mistrial have an obvious tendency to coerce an agreement, there is an abuse of discretion amounting to an illegal assumption of power upon the part of the court itself, which in a case where such abuse is made to appear as clearly as in the one now under consideration, gives to the verdict obtained by such means no value whatever, and necessarily brings about the very result which the court was attempting to prevent. (Twiss v. Lehigh Valley R. R. Co., 61 App. Div. 286; People v. Sheldon, 156 N. Y. 268.)

Our attention is also directed to the proceedings subsequent to the rendition of the verdict which are set forth at length in the record and which, to say the least, were very unusual and not in accord with our sense of propriety, but inasmuch as under the circumstances they could not possibly have had any influence upon the final action of the jury, they do not require especial consideration from this court; but we cannot dismiss the case without giving emphatic expression to our disapproval of the conduct of the counsel for the plaintiff while the jury were in court for the purpose of reporting the result of their deliberations. His statement as to the standing of the jury and his direct charge that some of their number' were influenced in their action by improper motives were most unseemly and disorderly. Indeed, they were sufficient of themselves to have warranted the court in dismissing the jury; and in our opinion this is precisely what ought to have been done, and the omission of the court to rebuke such a breach of professional decorum furnishes an additional reason for our unwillingness to affirm the judgment in this case.

In view of the conclusion at which we have arrived and which has already been indicated, we do not deem it necessary or proper to discuss the case upon its merits or to consider any of the exceptions contained in the record.

McLennan, Spring, Williams and Nash, JJ., concurred.

Judgment and orders reversed and new trial ordered, with costs to the: appellant to abide event. r  