Argued March 17, 1927. Plaintiff sued under the Federal Employer's Liability Act to recover for injuries sustained August 19, 1924, *Page 192 as an employee of defendant company; the jury returned a verdict for defendant, upon which judgment was entered, and plaintiff has appealed.
The sole assignment of error complains that the court below erred in not granting a new trial, because "members of the jury who were stockholders and employees of defendant company failed to make known that fact when the court clerk inquired of them whether there [were] any stockholders or employees of the Pennsylvania Railroad Compainy on the panel."
After the verdict for defendant, plaintiff petitioned the court below for the appointment of a commissioner to take testimony to ascertain the truth of the above complaint. The prayer of the petition was granted and witnesses appeared before the commissioner, including one of the jurors named Ament, who testified that he had been in the employ of defendant company for forty-eight years, but had been retired on a pension several years before the date of the trial. This witness said that since his retirement he no longer considered himself an employee of defendant and hence, had he understood the clerk's inquiry to be as to employees, he would not have answered in the affirmative, but, as a matter of fact, he understood the clerk to ask only as to stockholders. The witness stated that, in addition to his pension, he was given a pass on defendant's line.
In disposing of the complaint as to Ament's service on the jury, the court below said: "We are convinced . . . . . . that he did not believe himself to be an employee of defendant corporation at the time this case was on trial"; also, that the fact of Ament holding a pass for use on defendant's line did not make him an employee or cause him to stand in such relation to defendant as to raise a presumption that, as a juror, he would favor the latter. In this we see no error. The evidence in the case shows that, after being retired to the pension roll, Ament was never called upon for service by defendant company and was not subject to such call; that he was *Page 193 entitled by the "law" of the company to his pension for long service, and hence was quite independent of defendant's control. Any possible partiality in favor of defendant as an ex-employer would, it is fair to say, be counterbalanced by a somewhat similar feeling for plaintiff as one serving in a position like that so long occupied by the juror, that is, as a fellow employee. There were no inquiries made, however, to develop whether or not the juror was prejudiced or biased one way or the other.
Another juror named Barnhart made an affidavit to the effect that, while he owned no stock in defendant company, his wife had ten shares.
Both the trial judge and the court below in bane, after carefully considering appellant's complaints, concluded that the verdict rendered by the jury accorded with the "weight of the evidence" and that, under the circumstances, the ends of justice did not call for a new trial; appellant has shown nothing to the contrary, and, as the verdict is a proper one, we shall not disturb it.
The judgment is affirmed.