E. W. WEBB, Appellant,
MILDRED CLEO HARDIN, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment affirmed.
Mr. T. E. Scarborough and Mr. Sam H. Kyle, for Appellant.
Messrs. Darnell, Pattee & Robertson, for Appellee.
[53 Ariz. 311] LOCKWOOD,
E. W. Webb, hereinafter called plaintiff, filed suit against Mildred Cleo Hardin, hereinafter called defendant, alleging that he was injured as the result of an automobile collision caused through her negligence. The latter answered with a general denial, and then cross-complained, admitting the accident but claiming that it was caused by the negligence of plaintiff. The case was tried to a jury which returned a verdict in favor of defendant on plaintiff's complaint, and in favor of plaintiff on defendant's cross-complaint, and judgment was rendered accordingly. [53 Ariz. 312] After a motion for new trial had been presented to the court by plaintiff and overruled, this appeal was taken from the order denying the motion for new trial and the judgment for defendant. No appeal was taken by defendant from the judgment against her on her cross-complaint.
There are some eight assignments of error, raising several questions, which we will consider in their order. The first arises out of the alleged misconduct of one of the jurors who tried the case. On the motion for new trial, one of the grounds urged was that a member of the jury visited the scene of the accident during the trial of the case for the purpose of determining whether the testimony given in regard to the visibility at such place was correct. The motion was supported by several affidavits, the first being that of plaintiff to the effect that a juror, Arthur E. Johnson, visited the scene of the accident for the purpose of determining the degree of visibility there, such question being a material matter to be considered by the jury, and upon information and belief that the juror informed his fellow jurors as to his conclusion thus reached on that point. There was also an affidavit by the juror's wife that she had accompanied him upon this trip, and that upon returning to the city of Tucson he informed her that the purpose of the trip was to determine the extent of visibility. Controverting this was an affidavit by the juror to the effect that he had gone to the scene of the accident, as stated, but that he did not see anything that in anyway affected his opinion as to the cause of the accident or the liability of the parties; that he did not consider what he had seen in arriving at his verdict, and did not inform any other member of the jury that he had taken the trip. The matter was considered by the trial court and the motion for new trial denied, which, [53 Ariz. 313] in effect, was a holding that the conduct of the juror, even if erroneous, was not prejudicial.
It is contended by defendant that this is an attempt to impeach the verdict of a juror in a manner not permitted by law. Regardless of whether this be true or not, we think we cannot say affirmatively that the conduct of the juror constituted reversible error. While it was of course highly improper for him to visit the scene of the accident to ascertain anything in any manner connected with the case which he was trying, except on a view of the premises under the instruction of the court, the error is not necessarily reversible. We held in the case of Lawrence v. State, 29 Ariz. 247, 256, 240 P. 863, 867:
"... Whatever may be the rule in other jurisdictions, we hold that in Arizona no cause, civil or criminal, will be reversed for formal error, when upon the whole case it appears that substantial justice has been done, and that prejudice will not be presumed, but must appear probable from the record."
And we have affirmed that ruling in the case of Sam v. State, 33 Ariz. 383, 265 P. 609. Both of these cases were first degree murder, with a death penalty, and if it be the rule in such cases that error will not be presumed to be prejudicial, much more is this true in civil cases.
The question then is, Does prejudice seem affirmatively probable in the present case on account of the fact that a juror visited the scene of the accident? He has stated that he did not communicate the fact that he had done so to any other juror, nor did anything that he saw affect his verdict. In view of the fact that the verdict was unanimous, and that the trial judge, after considering the facts and hearing the argument thereon, determined that no prejudice had resulted, we think we cannot say affirmatively that [53 Ariz. 314] the misconduct of the juror, improper as it was, constitutes reversible error.
The next question is whether the court erred in giving certain instructions requested by the defendant. These instructions read as follows:
"One who suddenly finds himself in the place of danger and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of ...