(dissenting) :
This appeal is from an order denying a motion for a new trial on the minutes, as well as from the judgment, and, therefore, there is brought before this court for review all of the evidence and proceedings which took place upon the trial, and it is our duty to set aside the verdict, if, upon due examination, we are satisfied that the same was influenced by passion or prejudice, or that substantial justice was not done between the parties. (Davison v. Herring, 24 App. Div. 402.) While I concur in the opinion of Mr. Justice Ingraham to the effect that the evidence justified a submission to the jury and that no errors were committed Upon the trial which would justify a reversal of the judgment, I cannot concur with him that a new trial should not be ordered.
The plaintiff, a passenger on one of the defendant’s cars, was seriously injured by the car upon which he was riding colliding with another car, and the action was brought to recover damages for such injuries. The tidal lasted several days, and at the close of the first day, after the court had adjourned, and the trial justice and several of the jurors had left the court room, the plaintiff, who had just previous to the adjournment been examined as a witness, was suddenly taken ill. He became very pale; the pupils of his eyes were dilated; perspiration came out on his brow, and, at the suggestion of one of the doctors who was present, he was laid down upon the floor, and his face then turned blue; he groaned and indicated, both by sounds and actions, that he was in intense pain; water was given to him, also ammonia, and he commenced to retch and vomit and a distinct shaking or tremor was observed all over his body, except in his legs; coffee was given to him, a spoonful at a time, which he vomited; then brandy was given to him, and this he was unable to retain; thereafter, stimulants were given to him by means of hypodermic injections; he remained in this condition some fifteen or twenty minutes, during which time he presented a very distressing appearance. Some of the jurors were present and saw him, and those who did not see him in some way learned of what had taken place. Immediately on the opening of court on the following morning the defendant’s counsel called the attention of the court to what had occurred and asked leave to withdraw a juror, and upon an examination made by the court, it was ascér*76tained that at least nine of the jurors saw the occurrence, and one of the three not present informed the court that, although he did not see it, he had heard about it. The request was denied and subsequently a motion was made upon affidavits to set aside the verdict, based upon the facts above stated. Notwithstanding that the facts set forth in the affidavits were not denied, the motion, nevertheless, was denied and the request to withdraw a juror and the denial of the motion for a new trial present, as it seems to me, substantially the only questions on this appeal. The jury rendered a verdict of $22,000, which the trial justice announced he would set aside unless the plaintiff consented to reduce the amount to $17,000, which he did.
The purpose of a trial is to do justice between the parties, and to that end the verdict rendered by a jury must be based solely upon the evidence adduced upon the trial. "Whenever the court can see that the jury may have been influenced in rendering a verdict by facts independent and outside of the evidence, or that they have been influenced by sympathy, prejudice or passion, it never hesitates, but invariably sets aside the verdict and orders a new trial. Here, what occurred not only might, but probably did (indeed, the jurors would hardly have been human if it did not), influence them in the plaintiff’s favor. He claimed to have been seriously injured, and if he was in the physical condition which the sudden attack of illness indicated, it was a practical demonstration to the jury that the testimony offered upon his part was true. But the defendant had no opportunity to question the truth of these facts, and, therefore, it cannot be said that it had a fair trial in this respect. And, in this connection, the fact that the learned trial justice concluded to set aside the verdict unless the plaintiff would stipulate to reduce it by $5,000 is quite significant. He certainly would not have done this unless he had become satisfied that the jury had either been improperly influenced or else that they had failed to give due consideration to the evidence offered upon the trial. Considering the size of the verdict, the reduction made by the trial justice, and the facts above alluded to, it seems. to me that justice will best be served by ordering a new trial. If the plaintiff, has been injured to the extent claimed, he is entitled to a substantial recovery, the amount of which, however, must necessarily depend *77upon and be ascertained by a jury from evidence offered upon the "trial, and not from anything else. This both parties are entitled to, and this the law gives them.
I am, therefore, of the opinion, in view of the plaintiff’s alleged serious condition, and the fact that the jury may have been improperly influenced by what transpired after the court had adjourned at the close of the first day of the trial, that the judgment appealed from should be reversed and a new trial ordered.
Yah Brunt, P. J., concurred.
Judgment affirmed, with costs.