Watson v. City of Bozeman

Decision Date19 February 1945
Docket Number8452.
Citation156 P.2d 178,117 Mont. 5
PartiesWATSON v. CITY OF BOZEMAN.
CourtMontana Supreme Court

Appeal from District Court, Sixth Judicial District, Gallatin County; Benjamin E. Berg, Judge.

Action by Theo A. Watson against the City of Bozeman, a municipal corporation, for personal injuries sustained by plaintiff as the result of alleged defective construction of a gutter plate built and installed by defendant city. Verdict and judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Walter Aitken, of Bozeman, for appellant.

J. H Morrow, Jr. and George Y. Patten, both of Bozeman, for respondent.

CHEADLE Justice.

This is an action for damages for personal injuries sustained by plaintiff as a result of alleged defective construction of a gutter plate built and installed by the defendant city. The facts are substantially as follows:

The plaintiff, accompanied by her daughter, was walking along the west side of Black Avenue in Bozeman toward their home on that avenue, located about a half block north of its intersection with Lamme street. As they approached the southwest corner of the intersection, the daughter, who was to the right and slightly ahead of plaintiff, stepped on the east end of the gutter plate covering the gutter drain at that point, with the result that the gutter plate tipped and caused plaintiff to trip and fall violently to the sidewalk. As a result of the fall she suffered a depressed fracture of the malar bone and the orbital plate of the maxillary bone which together form the lower rim of the orbit of the eye. The evidence is not entirely clear as to the exact manner in which the injury occurred, but the testimony of the plaintiff and her daughter, coupled with certain allegations found in defendant's second affirmative defense, establishes to our satisfaction that it occurred in the manner above set forth.

Plaintiff testified that she had resided at the same location for about forty years; that she usually crossed this particular gutter plate in walking to and from her home, and had crossed it probably hundreds of times. She did not particularly observe the plate on the evening the accident occurred; she knew how the plate was supported, and did not notice any difference in the supports that day; that the supporting lugs are in plain sight, visible to anyone who crosses there.

The daughter testified that she had crossed this plate a good many times; that on the occasion when the injury occurred she did not observe any unusual condition of the plate to make her apprehand danger.

It appears from the record that this particular gutter plate had been in place and in use for a period of at least four or five years prior to the date of the injury; that about two hundred of this type of plate have been in use for a good many years; that no defective condition of this or other similar plate or of any prior injury caused by any defect has ever been called to the attention of the city officials. One of plaintiff's witnesses testified that during the month of August, 1941, as she and her brother were approaching this particular gutter plate, a crowd of boys passed them, one of whom stepped on the end of the plate, causing it to fly up and strike her above the ankles; that her brother caught her so she didn't fall.

The gutter plates in use throughout the city consist of two planks 2 inches X 2 inches X 5 feet, supported by the fastened to two iron supports, one end of which rested, without fastening, upon the curbing and the other on the cross-walk. These plates were constructed by the city from a design prepared by the city engineer. Apparently this particular plate varied somewhat from the design in that the planks were four feet seven and five-eighths inches in length instead of five feet. The iron supports were placed nine and one-half inches from one end and about five and one-half inches from the other. On the day following the accident this plate was repaired by replacing the planks. In the repaired plate the iron supports were placed about two and one-half inches from each end of the planks.

After the case had been set for trial and shortly before the date set, it was brought to the attention of the court that the plaintiff herein was a member of the jury panel and had served on four trial juries prior to the trial of this case. The case coming on for trial, the defendant made the following objection to trial before a jury to be selected from the panel:

"The defendant excepts and objects to trial before the present panel, or a jury selected from the panel, and I will state my objection into the record, if your Honor please.

1. The defendant objects to going to trial of this case before a jury chosen from the panel now in attendance on the court for the trial of cases, for the reason that the plaintiff in this action, Theo. A. Watson, is and has been a member of said panel.

2. Has, since the beginning of the present jury term, been consorting with all the jury members of said jury panel; has served on at least four trial juries selected from said panel, and sat and conferred with members of said trial juries in the trial of cases, said jury being selected from said panel, and from which jurors for the trial of her own case must be chosen.

3. That to compel the defendant in this action to submit to the trial of the issues in this action before a jury selected from said panel would deprive the defendant of a fair trial and impair its right to trial by an impartial jury, as guaranteed by section 23 [2, cl. 3] of Article III of the Constitution of the United States." This objection was overruled.

Upon voir dire examination each of the jurors called was challenged by defendant for cause, the challenge in each case being overruled.

Over defendant's objection evidence of medical expense paid by plaintiff in the amount of $47 was admitted, and defendant's motion to strike same was denied.

Defendant's thirteen specifications of error fall into three groups: First, error of the trial court in overruling defendant's objection to the jury panel and of its challenges to the individual jurors; second, that under the evidence the court erred in denying defendant's motions for nonsuit and directed verdict and for new trial, and that the evidence does not justify the verdict or judgment; third, error of the court in giving and refusing certain offered instructions. We shall consider these specifications separately.

Defendant contends that because of the fact that plaintiff was a member of the panel from which the trial jury was drawn to try this case, over objection, defendant was denied its constitutional right of a fair trial by an impartial jury.

Section 9343, Revised Codes of 1935, provides for challenge to the panel and to jurors for cause or peremptorily. This section permits but one challenge on a side to the panel, and provides that such challenge may be made and the array or panel set aside by the court, when the jury was not selected, drawn, summoned, or notified as prescribed by law. Section 9344 sets forth the seven grounds upon which challenges for cause to individual jurors may be made. These do not include the ground that a litigant with a case to be tried during the term is a member of the panel or has acted as a member of trial juries during the term.

Defendant cites authority for the rule that, "The enumerated causes for challenge in the statute are not always exclusive of all other causes not enumerated. For example, although a statute professes to give all grounds of challenging jurors for cause, the constitutional guaranty of an impartial jury will not be allowed to be destroyed by the legislature's omission of grounds that clearly render the juror incompetent." We agree with this as a general rule, but none of the authorities cited go so far as to hold that prejudice to the challenging party need not be shown, or that such prejudice must be presumed from the sole fact of the association of plaintiff with other members of the panel under the circumstances shown. State v. Russell, 73 Mont. 240, 235 P. 712, is authority for the rule that in criminal cases the right of an accused to trial by an impartial jury will not be permitted to be destroyed by the failure of the Legislature to include grounds of challenge that clearly render a juror incompetent. State v. Brooks, 57 Mont. 480, 188 P. 942. In 35 Corpus Juris, § 359, p. 333, the rule is stated: "Where a litigant serves on the jury at a term at which he has a case to be tried by a jury, all of the other jurors with whom he has been serving are incompetent to sit in the trial of his case." An examination of the authority for this rule, Garrett v. Patton, 81 W.Va. 771, 95 S.E. 437, discloses that the disqualification there was declared by statute.

Appellant quotes at length from State v. Wheeler, 179 Minn. 557, 230 N.W. 91, 94. There, under circumstances similar to those of this case, the trial court refused a motion for continuance for two months, which the appellate court held as error. That case differed from this, however, in that the prospective jurors were not shown to have been examined as to bias and prejudice. Because of apparent misconduct of the respondent's son and others in the presence of witnesses, discussion of the case by one of the jurors with a third party, and apparent excessiveness of the verdict, the court concluded that "a sufficient showing of prejudice had been made, and that it was error not to continue the case or to call in other jurors for the trial."

Each prospective juror was closely...

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5 cases
  • Mahan v. Farmers Union Cent. Exchange, Inc.
    • United States
    • Montana Supreme Court
    • March 13, 1989
    ...question and how his answer is to be taken. This Court discussed the nature of jury selection proceedings in Watson v. City of Bozeman (1945), 117 Mont. 5, 10-11, 156 P.2d 178, 181: While we feel that under the circumstances of this case, on proper motion, the trial court should call in oth......
  • Gobel v. Rinio
    • United States
    • Montana Supreme Court
    • December 2, 1948
    ... ... see how defendant could have been injured by the instruction ... And compare Watson v. City of Bozeman, 117 Mont. 5, ... 156 P.2d 178. The court in the Ball case said [29 Mont. 321, ... ...
  • State v. Darchuck
    • United States
    • Montana Supreme Court
    • February 20, 1945
  • Liss v. Kreitel, 12290
    • United States
    • Montana Supreme Court
    • May 4, 1973
    ...unless error is manifest, or there is shown a clear abuse of discretion. * * *' We have reaffirmed this position in Watson v. City of Bozeman, 117 Mont. 5, 156 P.2d 178, and again in the case of State v. Borchert, 156 Mont. 315, 320, 479 P.2d 454, wherein the following is 'Defendant's secon......
  • Request a trial to view additional results

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