Owens v. . R. R. , 123 N.C. 183 ( 1898 )

Any juror may dissent from a verdict, to which he has agreed in the jury room, at any time before it is received and entered up, and this is true even of a sealed verdict. Weeks v. Hart, 31 N.Y., 181; Root v. Sherwood, 6 Johns N. Y., 68; Rathbaner v. State, (184) 22 Wis. 468; Bishop v. Mugler, 33 Kan. 145; 2 Thomp. Trials, sec. 2635.

In the present case, the verdict was rendered as to the second issue (contributory negligence) "No." Before it was entered and before the jury was discharged, the court, at the request of defendant, permitted them to be polled; whereupon one of the jurors responded to the second issue: "I think she (plaintiff) was to blame in part." This was certainly not a response of "No." He was then asked if he had not consented in the jury room that the issue might be answered "No." To this he replied, "I did."

It was error to permit the verdict to be received after the juror's dissent, in part, at least, without ascertaining whether notwithstanding he adhered still to the assent given in the jury room. The force of this would be better seen if each of the jurors on being polled had responded as this juror did. On a poll of the jury each "tub stands on its own bottom," and the dissent of one is as fatal as that of all. Unanimity in the verdict of a jury is still required in this State, though abolished in some other jurisdictions, and the judge should have directed the jury to retire and consider further of their verdict. For the reception of the verdict under these circumstances over the objection of the defendant, there must be a

New trial.

Cited: Smith v. Paul, 133 N.C. 68.

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