Faison v. Efird, 202 N.C. 854 (1932)

May 18, 1932 · Supreme Court of North Carolina
202 N.C. 854
EDITH FAISON v. C. L. EFIRD

EDITH FAISON v. C. L. EFIRD.

(Filed 18 May, 1932.)

Appeal by plaintiff from Barnhill, J., at December Term, 1931, of New Hanover.

Civil action to recover damages for alleged negligent infliction of personal injuries. Tbe plaintiff was walking on tbe public bigbway, about six miles from tbe city of Wilmington, wben sbe was struck by defendant’s automobile and injured.

Tbe jury answered tbe issue of negligence in favor of tbe defendant. Thereupon, at tbe trial term and. before entry of judgment, tbe plaintiff ■ lodged a motion to set aside tbe verdict for misconduct of the jury in taking two toy automobiles into tbe jury room.

Tbe following is tbe material part of tbe court’s order:

“During tbe trial witnesses for tbe plaintiff and witnesses for tbe defendant used two toy automobiles to illustrate tbe manner in wbicb they testified tbe wreck occurred, and counsel both for tbe plaintiff and tbe defendant used tbe same toy automobiles in illustrating tbeir argument to tbe jury. After tbe jury bad retired for deliberation, while returning from supper, one of tbe jurors took tbe two toy automobiles to tbe jury room. There tbe various jurors used tbe same to illustrate tbeir understanding, pro and con, of tbe testimony of tbe respective witnesses, tbe deliberations finally resulting in tbe verdict wbicb appears of record.

“Knowledge of tbe presence of tbe toy automobiles in tbe jury room was not called to tbe attention of tbe counsel for tbe plaintiff until after tbe verdict, and tbeir motion was made in due time.

“Upon tbe bearing of tbe motion tbe court is of the- opinion that tbe use of such toy automobiles merely aided tbe respective jurors in better presenting tbeir various views as to tbe testimony of tbe respective witnesses, and was in no wise prejudicial to either party, and therefore denies tbe motion, and tbe plaintiff excepts. Motion to set aside tbe verdict in tbe discretion of tbe court is denied.”

Plaintiff appeals, assigning errors,

Aaron Goldberg, Alton A. Lennon and Newman & Sinclair for plaintiff.

Rountree, Madder <& Rountree for defendant.