'The Court: I think they should deliberate further.
'Mr. Lorry: I think they should be given every opportunity, sir.
'The Court: Now, Members of the Jury: I am going to ask you to deliberate further on this, and see if you cannot arrive at a unanimous decision. If you cannot decide this, what jury can? I do not know. You are certainly as competent as any jury that could be called to try this case, and I think possibly more so than most, and you ought to try to do it. Now, you may retire again to the jury room, and when you arrive at a verdict, as I hope you will, you may put your verdict in an envelope and seal it and give it to your foreman.
'Now, the foreman if he cares- perhaps not to take it home with him- may deliver it to the Clerk who will be available at that time, and he will keep it until tomorrow, and you will return here at 10 o'clock in the morning and deliver the verdict to the Court.'
'Well, Members of the Jury; I think you ought to deliberate some more before we determine we have to try the case over again. So you are now asked to go to your room and continue your deliberations.'
The jury retired and delivered a sealed verdict to the Clerk about 6:30 p.m. that same evening.
The defendant now contends that these remarks over-emphasized the importance of this jury's agreeing to a verdict and tended to coerce the jury into reaching a decision. The test for the propriety of such remarks is whether they in fact attempt to assist the jury or to coerce them. 'If it is an attempt to break down the individual judgment and honest conviction of a juryman in order merely to reach a verdict, it is erroneous; but if it is an admonition or request to the jury to reason together, to consider one another's views, and attempt to reach a conclusion, it is entirely proper.' Hill et al. v. Wabash Ry. Co., 8 Cir., 1924, 1 F.2d 626, 632. And mere refusal to discharge a jury on its own request is not coercion. Hinman v. Hinman, 1925, 283 Pa. 29, 128 A. 654.
The instructions given here were in fact only a recital of the jury's duty to decide the case if they could conscientiously do so. They were given in aid of the jury's function, not in abridgment of it. Similar instructions were approved by the United States Supreme Court as long ago as 1896 in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528, and have continued to receive approval in many jurisdictions in both civil and criminal cases to the present time. In the recent case of U.S. v. Samuel Dunkel & Co., 1949, 173 F.2d 506, 508, the United States Court of Appeals for the Second Circuit again approved instructions similar to those in Allen v. United States, supra, and further stated: 'A hung jury is certainly undesirable in the administration of justice, and it is proper for the court to point out the specific disadvantages of a new trial in the case before it.' This was the second trial of the case. Both trials were long and costly to all the parties involved. The jury reported inability to reach a unanimous decision after only about five hours of deliberation, and two jurors stated that they felt further deliberation would assist in arriving at a unanimous decision. The comments of this Court, in retiring the jury for further deliberation, did not coerce the jury into reaching a decision, nor were they in any way prejudicial or harmful to the defendant.
It is the conclusion of this Court that the record shows no error in the trial which was prejudicial to the defendant. The questions of negligence, causal connection and damages were properly left to the jury after an adequate charge by the Court. The verdict was supported by legal evidence, and the defendant has failed to advance any valid reasons why a new trial should be granted.
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