Opinion
May 15, 1939.
Order of the County Court of Rockland county setting aside the verdict of no cause of action, in each action, on the ground that the verdicts were inconsistent, contrary to law and to the evidence, that they were compromise verdicts and rendered by the jury after the consideration of certain papers which were not in evidence, reversed on the law, with costs, motion denied, verdicts reinstated and judgment directed to be entered thereon. This is a consolidation of two actions in which each party seeks to recover damages from the other resulting from a collision between their respective automobiles. The jury returned a verdict of "no cause for action" in each case. We are of opinion that such verdicts were not inconsistent and that the jury, under the charge, may well have found that each was guilty of negligence resulting in the collision. Further, there is no evidence in the record to indicate that the verdicts were the result of a compromise. The paper to which reference is made in the order setting aside the verdicts was the report of a previous motor vehicle accident, which was duly received in evidence. If the document was admitted for a limited purpose, the jury should have been so instructed. But no such request was made on behalf of the respondent. Even if the document tended to prejudice the plaintiff's case, which we think it did not, counsel should have moved for a mistrial immediately on discovering that the exhibit was in the possession of the jury, which discovery was made between five and ten minutes after the jury had retired. Counsel may not speculate on the result, and complain if it is unfavorable. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.