47 Affidavit of Walter Sharp. The jury retired for deliberation between 3:30 139 and 4:00 P. M. Several of the jurors indicated their intention of rendering a verdict for the defendant because they believed that the accident happened as a result of the carelessness of both drivers. I told them that that was not my understanding of the Judge's charge. I remembered that in the case that was tried the day before, the Judge had charged the jury that even if Mrs. Kelly's husband was negligent, she was entitled to a verdict against Mrs. Good, if Mrs. Good had been careless, and I was sure that the Judge had charged in Muller's case that if the accident happened through the carelessness of both drivers and without any fault on the part of Muller, that our verdict should be for the plaintiff. The juror who sat at my left was of the same opinion and I think one other juror was inclined to agree with us. The remainder of the jurors insisted that the Court had charged that if the accident had occurred through the carelessness of both drivers the verdict must be for the defendant. 140 In order to settle the matter, we decided to have the Judge's charge read to us and between 4:25 and 4:35 the foreman sent word by the Court 141 officer that the Jury wanted the charge read. The Court officer returned and stated that the Trial Judge and stenographer had left the Court House and there was no way in which we could have the charge read to us. The other juror and myself were finally convinced by the other jurors that we were in error as to our recollection of the charge, and we finally agreed on a verdict for the defendant at about 9:00 P. M. 142 Affidavit of Elmer Barnett. I have since been shown an official transcript of the Judge's charge, and find that my recollection was absolutely correct, and if I had had this charge read when the discussion arose, my verdict would have been for the plaintiff, and I would have held out for the verdict all night if necessary. I am also of the opinion that if the jury had correctly understood the charge, there would have been a verdict for the plaintiff. WALTER SHARP. 143 144 Sworn to before me this 13th day of February, 1931. W. E. GILLEN, Notary Public, Nassau Co., N. Y. Affidavit of Elmer Barnett, Read in Support of Motion. SUPREME COURT, NASSAU COUNTY. [SAME TITLE.] State of New York, County of New York-ss.: ELMER BARNETT, being duly sworn, deposes and says: I reside at Willow Street, in the Township of Affidavit of Elmer Barnett. employed by the Standard Shipping Company, a subsidiary of the Standard Oil Company (N. J.) at 26 Broadway, New York City as a Marine Statistician. I was a juror on the trial of the above entitled action which was tried on the 27th and 28th days of January, 1931, and which returned a sealed verdict on January 29th, 1931, for the defendant. 145 The jury retired about 3:40 P. M. 'on January 28th, 1931. Very early in the deliberations of the jury, a discussion arose as to what the Judge had charged in the event that the jury found that the accident occurred as a result of the negligence of 146 both drivers. I had a distinct recollection that the Judge had charged us that in that event if we found Muller was free from contributory negligence our verdict should be for the plaintiff. This view was shared by the juror who had sat at my right during the trial, and one other juror whose name and position I do not recall. The other nine (9) jurors insisted that the charge was directly opposite, in other words, that if we found that the accident occurred through the 'negligence of both drivers, even if Muller was free from contributory negligence, our verdict must be for the defendant. In my judg. 147 ment, the accident was caused through the negligence of the defendant, McBride, and was contributed to by the driver of the fire truck, and Muller, the plaintiff, was free from any fault, and I was in favor of rendering a verdict for the plaintiff. After some further discussion, I insisted that the foreman request the Court to have that portion of the charge read to us. This happened to the best of my recollection about three-quarters 148 149 Affidavit of Elmer Barnett. of an hour after we had retired. A little later in the discussion, I raised the question as to the duty of a driver of a motor vehicle in approaching a crossroad, and I requested the foreman for instructions from the Court as to what the law was on that subject. I assume that the foreman conveyed these requests to the officer in charge of the jury. This occurred at approximately 4:45 P. M. Shortly thereafter the foreman came to me and told me that the Judge had gone and that we could not have any part of the charge read to us or receive any further instructions from the Court. After a short recess for supper, the jury continued its deliberations until about 9:00 P. M. The two (2) jurors who were of the same opinion as myself with reference to the Judge's charge were finally won over by the remaining nine (9) so that I stood alone against the other eleven (11 jurors. I felt under the circumstances that my recollection must have been erroneous, and and I finally consented to a verdict for the defendant, but I stipulated that the verdict must not under any circumstances absolve the defendant, McBride from blame. Some of the jurors were under the 150 impression that their verdict had to be that MeBride, 'the defendant, was either guilty or not guilty. I refused to agree to a verdict that McBride was not guilty, and I was finally convinced that a verdict for the defendant would leave that question open. William F. Lally, the plaintiff's attorney, has since shown me a copy of the Judge's charge, purporting to be an official transcript. After reading this transcript, I find that my original position as to the Judge's charge was Affidavit of Elmer Barnett. correct, and that the Judge had charged as I originally stated, that if we found that the plaintiff was injured through the negligence of the defendant, even though there was also negligence on the part of the driver of the fire truck, and that Muller was free from negligence, he was entitled to a verdict. If I had had this charge read to me when the discussion arose, my verdict would have been at all times for the plaintiff, and it is my firm opinion that if the charge had been read to the jury when requested, there would have been no hesitation on the part of the jury in rendering a verdict in favor of the plaintiff. I have been asked by Mr. Lally whether or not I recall the jurors being asked during their examination, whether or not any of them owned automobiles, and whether or not any of them, or any member of their families were involved in any litigation arising out of the ownership or operation of automobiles. I have a distinct recollection of such question having been asked. 151 152 ELMER BARNETT. 153 Sworn to before me this 13th day of February, 1931. WM. G. RADER, Notary Public, New York County. N. Y. Co. Clk.'s No. 9. |