it, and give him an exception; but he certainly has a right to have that upon the record.

"Defendant's counsel: Your honor will bear with me a moment. I respectfully submit he has not a right to. make such a proposition. It has been made repeatedly during this trial, and your honor has as often ruled it out, and it is not made in good faith, may it please your honor. It is for the purpose of bringing before this jury matter that does not belong there, and I desire to have an objection and an exception.

"The Court: You are entitled to your exception, and I will give you an exception. As far as the remark is concerned that you made a moment ago, I think it was entirely uncalled for, because, under the circumstances, Mr. Griffin would certainly have a right to have that upon record, in view of the claim on the cross-examination of the boy's mother. I shall give Mr. Griffin an exception to that proposition, and you can have an exception to the remark, Mr. Kirchner."

Error is assigned upon the remarks of the court. I am satisfied that the court was entirely right, and that the counsel for defendant was at fault in charging the counsel upon the other side with "pettifogging."

There is nothing misleading or inconsistent in the charge of the court. If anything, it was too favorable to the defendant. The circuit judge instructed the jury that they must, in order to

"Find a verdict for the plaintiff, be satisfied, by a preponderance of evidence

"1. That the boy was on the foot-board of the engine. "2. That the engineer did see him upon the footboard.

"3. That the engineer, after seeing the lad upon the foot-board, started the engine without ascertaining whether the lad had got off.

4. That the engineer was guilty of gross negligence. "5. That the plaintiff, by reason of his insufficient intelligence, was unable to comprehend the danger, and was not guilty of contributory negligence.

6. In order to find for the plaintiff, you will have to find affirmatively upon each and every of those proposi

tions.

If you do not so find, your verdict will have to be for the defendant."

What was gross negligence was clearly and sufficiently defined to the jury.

The last error assigned is that the court erred in refusing to permit Mr. Wesch, one of the jurors, to make a statement. To fully understand this question, it will be necessary to quote largely from the proceedings in the taking of the verdict. The jury retired, and, after being absent for a time, at 8 o'clock P. M. the court directed that the jury be brought into the court-room:

"The Court: Gentlemen of the jury, I understand that you have not been able to agree?

"The Foreman: No, sir.

"The Court: Is there any likelihood of your agreeing? "The Foreman: I do not think there is.

"The Court: The case has taken some time, has been on trial during the entire week, and I think I will let you try again.

"Juror Shields: There has been an intimation, your honor

"The Court: I do not care about any argument, Mr. Shields. The officer will take the jury into their room again."

At 6:58 A. M., January 19, 1889, the jury returned a verdict in favor of the plaintiff for $8,750. Defendant's counsel asked that the jury be polled. Mr. Wesch, one of the jurors, stood up, and attempted to address the court.

"The Court: The clerk will proceed with the polling of the jury.

"The Clerk: James Daly, was this your verdict, and is this your verdict?"

Mr. Daly answered, "Yes," as did all the other jurors, when the same question was put to them. When Juror Wesch was reached, the clerk said:

"George W. Wesch, was this your verdict, and is this your verdict?

"Mr. Wesch: Yes.

"The Clerk: Do you say, "Yes?' "Mr. Wesch: Yes."

When the last juror interrogated, Mr. Shuman, answered, "Yes," the following proceeding immediately followed:

"The Court: Gentlemen of the jury, you are discharged from the further consideration of this case, and I may say at this time that I regret very much being obliged to keep you out all night, but I endeavored to make things as comfortable as possible, and it has not only been an inconvenience to you, but also to me.

"Mr. Wesch: Your honor, I would like to say"The Court: Never mind that now.

"Mr. Wesch: I just want to say a word.

"The Court: I say, gentlemen, it has not only been an inconvenience to you, but also to me. It is the first occasion on which I have kept a jury out all night, but in view of the fact that this case was tried last spring, the trial lasting several days, and in view of the fact that we have been trying it during the entire week, and that it has been an enormous expense to the county, I did not feel justified, under the circumstances, in adopting any other course than was adopted. Under the circumstances, gentlemen of the jury, you need not report here until next Monday afternoon at two o'clock.

"Defendant's Counsel: May it please your honor, if there is a juror here who desires to say anything, I think he has a right to be heard.

"The Court: If there is such a juror here, he can come and see the court.

"Defendant's Counsel: If there is such a juror here, undoubtedly he can come and see your honor, but, if any juror has been compelled to give a verdict contrary to his own convictions, he has a right to so state it.

"The Court: The verdict has been taken in the proper way, and if the juror has any explanation or complaint to make it is his duty to come and see me. The verdict has been rendered, and the jury have been discharged.

"Defendant's Counsel: I take an exception to your honor's ruling."

It will be noticed that at no time did the juror state

that the verdict was not his, or of his own free will; nor is it shown that he went to the judge with any complaint or explanation after the jury was discharged. It is claimed on the argument here by defendant's counsel that the juror attempted to speak three times, and was not permitted to do so before the jury were discharged and that he had a right to be heard in explanation or in correction of the verdict as announced by the foreman; and he assumes that Wesch attempted to speak for such explanation or correction. His right to do so is not denied, and is undoubted. But every presumption is in favor of the correctness of the verdict, and the question is, is there anything upon this record to show that Wesch wished to explain the verdict or to correct it, or anything to show that the trial judge was made acquainted with such desire on the part of Wesch or had any reasonable ground to believe that this was why Wesch wished to speak, at any time before the jury was discharged? An examination of the proceedings will show that there is not, but that, on the contrary, it appears from his conduct that he was satisfied with the verdict. When the poll of the jury was demanded Wesch stood up and attempted to address the court. We are are not advised by the record that he said a word, or that the court heard him say anything, or saw him standing up. The record simply shows that the court said: "The clerk will proceed with the polling of the jury." When Mr. Wesch's name was called, and he was asked not only if this verdict was his verdict, but, "Is this your verdict," then was his time to speak, if he had anything to say against the verdict, or in explanation of it. He then had the opportunity, which would not have been denied to him had he taken advantage of it. But, no; he deliberately answers twice that it was his verdict, and is his verdict. In the face of this conduct of the juror,

can it be said from the record that he arose at any time to complain of the verdict, or to say that he had been coerced into it, as claimed by defendant's counsel, or that the judge had the slightest intimation until the counsel spoke that such was Wesch's object in attempting to speak? I think not. Mr. Wesch, when he made his next attempt to speak, broke in upon the remarks of the court, and after the court had stated that the jury was discharged, and there was nothing about his desire to "say a word" that would give any one, after he had agreed to the verdict upon the poll, an intimation or hint that he then wanted to attack the verdict, to the correctness of which he had but the moment before twice solemnly certified. And we have no evidence before us tending to show that such was his object, except his own affidavit filed subsequently upon a motion for a new trial, which affidavit we cannot consider here. It is assigned as error that this motion for a new trial was denied; but we have held, over and over again, that error cannot be assigned on this ground in a civil case. Toulman v. Swain, 47 Mich. 85 (10 N. W. Rep. 117); Jones v. Hobson, 37 Id. 36; People v. Judge, 20 Id. 222; Nelson v. Mining Co., 65 Id. 288 (32 N. W. Rep. 438); Mining Co. v. Brady, 14 Id. 263; Cuddy v. Major, 12 Id. 368; Dibble v. Rogers, 2 Id. 404; Final v. Backus, 18 Id. 218. And the motion, including the affidavit of the juror Wesch, form no part of the record, and are not brought up on writ of error. Final v. Backus, 18 Mich. 233. And upon mandamus we refused to issue an order directing Judge Gartner, who tried the case in the court below, to grant a new trial upon the presentation of the same reasons to us that are now urged before us. The judgment must be affirmed, with costs.

SHERWOOD, C. J., and CHAMPLIN, J., Concurred with

MORSE, J.