(dissenting).
While I concur in the holding of the principal opinion that the testimony of the jurors was not admissible to impeach the verdict, it is my further view that whether “the jury foreman’s efforts influenced the verdict” is hot before us for discussion or ruling. I think that the trial court erred in granting the new trial upon claimed “misconduct' of a juror.”
But I further think it was error to submit the case to the jury upon the theories of negligence set out in instruction 1. From a study of this transcript I think there is no evidence, and it seems to me that it is not fairly and legally inferable [679] from any fact or circumstance in evidence, that a failure to slacken the speed of the street ear or that a failure to sound a warning of its approach was a proximate cause of the collision.
Believing the trial court erred in giving instruction 1,1 would affirm the order granting the new trial.