There can be little doubt that the conduct of the juror Wagner, as shown by this memorandum, which is borne out by the record in every respect, was highly prejudicial, and that he was wholly unfit to be a juror in this cause; and that plaintiffs would have been in a better position as regards a recovery had any one of defendant’s attorneys been upon the jury instead of the juror alluded to, because in that case their high sense of propriety would at least have caused them to deal fairly, whereas with Wagner on the jury the defendant evidently had the advantage of having a vicious and ignorant advocate in the jury box.
Section 3-c of Article VII of our Constitution only affects the right of a court to re-examine the facts in a case and inhibits it from weighing contradictory testimony in a case where there is any substantial testimony upon which a jury may find a verdict. The statutory causes for a new trial are as follows:
“Sec. 174. [Or. L.] A former judgment may be set aside and a new trial granted on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
“1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court, or abuse of discretion, by which said party was prevented from having a fair trial;
“2. Misconduct of the jury or prevailing party;
“3. Accident or surprise which ordinary prudence could not have guarded against;
“4. Newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;
“5. Excessive damages, appearing to have been given under the influence of passion or prejudice;
*6“6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against the law;
“7. Error in law occurring at the trial, and excepted to by the party mailing the application.”
As to causes therein numbered 1, 2, 3, 4 and 6, the amendment has made no change, and as to them courts still have the same power that they had at common law. The general rule is, as stated by counsel for appellant here, that objections to the conduct of jurors must be made as soon as they come to the knowledge of counsel, and that counsel will not be allowed to be silent and speculate upon the result of a verdict; but the decisions thus holding may all be referred to the conditions under which the misconduct arose, and the opportunity to make seasonable objection.
As well remarked by the trial judge, the last “outburst” of the juror Wagner occurred just before the close of the address of plaintiffs’ counsel and in a situation where an objection would have been unavailing for any purpose, and even if the court had discharged the jury and granted a new trial at that stage of the proceedings no expense would have been prevented and no greater prejudice to the rights of any party would have resulted than would occur by granting a new trial later. In fact, the position of the parties would not have changed in any way from that in which they now find themselves. A reprimand to the juror would have amounted to nothing and would have made him more obstinate in his course and intensified his prejudice against the party making the objection.
The object of the law is to give every man a fair trial before an impartial jury and this would have been defeated in the present instance if the court had *7allowed a verdict to stand which it is evident might have been influenced by the prejudice excited by the juror’s remarks; and as to the juror himself, it is evident that his mind was not in a condition to weigh calmly and fairly the testimony, but, on the contrary, he was surcharged with prejudice against the plaintiffs and their witnesses and in a position where he could make that prejudice effective as to other jurors.
While the granting or refusing of a new trial for other reasons than those mentioned in Section 3-c, Article VII, supra, is not technically a matter wholly of discretion, yet it is largely so, and we are not disposed to interfere with the discretion that the court exercised, and we think justly, in this case.
The order granting a new trial is affirmed.
Affirmed.
Bean, Brown and Rand, JJ., concur. MgCourt, J., not sitting.