dissenting. The pivotal factual issue presented here concerns the railroad crossing; the location of the road in its approach to the crossing; the relation of the road to the railroad tracks; and ultimately the effect, if any, these facts had upon appellee Lenon White as he approached the crossing, looked, and proceeded onto the tracks.
The parties had a fundamental right to a hearing by jurors who had either no prior knowledge of this crossing or, with knowledge, an open mind uncontaminated by any previously acquired bias or prejudice. On voir dire, counsel had ample opportunity to test each juror’s knowledge of and familiarity with what was to become the focal point of the case •— the crossing. At that stage in the proceedings, counsel had the opportunity to challenge those prospective jurors whose judgment might be tainted by some extraneous knowledge or experience.
After undergoing the selection and qualification process, the jury ultimately selected is presumed to be a fact-finding body dedicated solely and exclusively to the purpose of determining the issues of fact from the witnesses testifying under oath, in court, and subject to the rules and procedures relating to the production of evidence.
Here, however, we are confronted with an interruption in the orderly flow of that procedure by the foreman and two other jurors going to the scene and conducting their own private investigation. This extrajudicial expedition was unknown at the time to court and counsel and was not subject to any limiting instruction regarding the applicability or admissibility of any evidence that they might glean from their investigation or deem to be of importance in the case. Finally, and significantly, counsel for the parties were unable to counteract, by additional evidence or cross-examination, any extraneous evidence affecting the juror’s decision. The advocacy element — the bedrock upon which jury trials are built — was interrupted if not totally defeated under these facts.
The determinative question is whether the appellee driver, whose view was allegedly blocked by the bed of his gravel truck, was able to see down the tracks to his right while making a 90-degree right turn onto the crossing. An elaborate scale model of the scene and surrounding landmarks was constructed and used at trial with the approval of both parties and was exhibited to this court during oral argument on appeal. Witnesses testified at great length during the trial on the subject of visibility, using the scale model to illustrate their testimony. This evidently was not sufficient for all of the twelve jurors — three of them decided to conduct their own investigation, presumably to ascertain what the driver could or could not see as he approached and entered the crossing.
I feel certain that my colleagues do not condone this juror misconduct. The majority appear, instead, simply convinced that there was no showing of a reasonable possibility of prejudice. I am not so convinced and would therefore reverse.
I am fully cognizant of the provisions of ARCP Rule 59(a) dealing with new trials for jury misconduct; A.R.E. Rule 606(b) dealing with inquiry into the validity of the verdict; and our previous holdings in Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985) and B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). I must, however, part company with the majority in their interpretation of these authorities under the facts of this case.
In Borden, the majority appear to place great emphasis on the fact that there the court told the jury not to go examine the scene. Two jurors violated that instruction and reported their impressions to other members of the panel, thus creating a reasonable possibility of prejudice. In B. & J. Byers, there was no such instruction by the court, and we held that there was no reasonable possibility of prejudice. The majority is now placing undue emphasis on the effect of the giving of or the failure to give a cautionary instruction.
We have in this case everything that was present in Borden except an admonition by the court not to make an independent investigation. As in Borden, jurors went to the accident site and reported their findings which were made outside the procedural bounds of a court of law. Must the trial court in every case go beyond its general admonition in qualifying the panel and spell out what might specifically constitute improper conduct?
Juror Burdett, in her affidavit, testified: “I drove the same route that Lenon White did on the date of the accident in an attempt to see for myself the view of the crossing he might have had at the time of the accident.” She also stated: “During the jury deliberations, I told the other jurors that I had been to the crossing on two separate occasions and I told them about the view I had at the crossing.”
Juror McCain testified in her affidavit: “The day before jury deliberation, because of the apparent conflicts in the testimony, I drove to Palestine to view the crossing where the accident occurred. I drove the same route that Lenon White did on the day of the accident in an attempt to satisfy myself as to the view of a motorist at the crossing. After the case was submitted to the jury and during deliberations, I indicated to the other jurors that I had been out to the crossing the day before and that I had pulled my pickup truck up the tracks and found it necessary to look out the back window of my truck in order to see down the tracks ... I told the other jurors that even when I did this, I was not able to see very far down the tracks.”
Juror McCain further testified in her affidavit that foreman Peacock told the other jurors he had also been to the scene and expressed his opinions based on his personal observations.
It is a distinct possibility, if not a probability, that ultimately, as a result of the private investigation conducted by these three jurors, the verdict was in fact a verdict of only the three jurors.
Fundamental fairness dictates that every party, whether a railroad company or a private citizen, must be afforded a trial by a jury composed of open-minded persons, unfettered by personal prejudice and bias, who reach a decision unencumbered by improper influences.
The test as stated in both Borden and B. & J. Byers is whether there is a reasonable possibility of prejudice. I am convinced that the appellant met its burden and clearly established that a reasonable possibility of prejudice resulted from juror misconduct. I would reverse and remand this cause for a trial before a new jury to the end that a verdict may be reached based strictly on the evidence from witnesses under oath.