Wagoner v. Union Pac. R. Co.

Decision Date03 November 1947
Docket Number6983
Citation112 Utah 189,186 P.2d 293
CourtUtah Supreme Court
PartiesVAN WAGONER et al. v. UNION PAC. R. CO

Appeal From District Court, Third District, Salt Lake County; A H Ellett, Judge

Action by Alta J. Van Wagoner and others against the Union Pacific Railroad Company to recover for the death of Dean Van Wagoner, deceased. From a judgment in favor of the defendant, the plaintiffs appeal.

Judgment affirmed.

R Verne McCullough, of Salt Lake City, and Don Mack Dalton, of American Fork, for appellant.

H. B Thompson, Bryan P. Leverich, M. J. Bronson, and A. U. Miner all of Salt Lake City, for respondent.

McDONOUGH C. J., and PRATT and WADE, JJ., concur.

OPINION

LATIMER, Justice. On

May 15, 1944, at approximately 6:30 P.M., Dean Van Wagoner, deceased, was driving a Ford pick-up truck south on Fourth West Street in American Fork, Utah. This street runs generally in a north and south direction, and intersects with a single railroad track of the defendant which runs generally in a northeast to southwest direction. The weather was clear, the sum was commencing to set but was shining brightly, and the road was dry. As the deceased attempted to pass over the crossing, his truck was hit by defendant's engine pulling some thirty-two cars, and he was fatally injured. The appellants in this action are his sole surviving heirs at law, and instituted the action in that capacity. The action was tried before a jury and a verdict of 'No cause of action' returned. From the judgment on the verdict, plaintiffs have appealed to this court.

Appellants predicated their right to recover upon the following acts of negligence: (1) Failure to give warning (ring the bell or blow the whistle); (2) Failure to keep a proper or any lookout; (3) Failure to maintain a good and sufficient crossing; (4) Operating the train at a high and dangerous rate of speed; and (5) Failure to avoid the collision when by the use of ordinary care the railroad company could have prevented the death of deceased.

It is not necessary to detail the voluminous evidence on all the alleged grounds of negligence. The parties concede that as to certain acts the evidence is conflicting and the jury adequately and correctly instructed. It will therefore only be necessary to refer to such evidence as is material to the questions raised on this appeal.

The following sketch of the scene of the accident, taken from an exhibit introduced by the plaintiffs, is included in the opinion for illustrative purposes. The evidence necessary to a proper determination of the questions presented by the appeal will be referred to under the appropriate discussion.

The parties to the action have argued the assignments of error under six propositions, and these will be treated in the order presented, with the exception of proposition Number Six. A discussion of this one is not necessary in view of the fact that it raises the question of whether or not the court erred in limiting appellants in their right to recover certain elements of damage. The jury having rendered a verdict in favor of the respondent, the instruction, if erroneous, did not prejudice the appellants' cause.

Appellants' first assignment of error raises the question as to whether or not the court erred in denying appellants' challenge of a juror for cause. Mr. Melvin Hurd was an adjuster for the respondent railroad company, and made an investigation of the particular accident involved. In connection with this investigation, he took a number of photographs, made numerous measurements and interviewed a number of witnesses. At the time of the trial, he was still employed by the respondent, and testified as a witness for the company. His mother, Mrs. W. C. Hurd was a member of the jury panel, and was one of the jurors selected for duty in this action. During her examination she disclosed her relationship, with the adjuster, and was questioned at some length by the trial judge and by appellants' attorney. Without quoting in detail, the record indicates she made a full and fair disclosure of her attitude toward the parties and expressed a willingness to carry out her duties, if selected as a juror, and render a fair and impartial verdict based on the evidence introduced and instructions as given by the court. She had no actual bias toward either of the parties, but did express a normal mother's feeling towards

[SEE ILLUSTRATION IN ORIGINAL] the honesty and integrity of her son. Under questioning of appellants' counsel, she testified in substance that she would place more credence in and give more weight to her son's testimony

than she would to that of a stranger; that it would likely take more testimony to overcome her son's testimony than it would if a stranger had been the investigator and witness; that even if two witnesses testified contrary to her son's testimony she would believe her son; and that it would take considerable evidence to remove the belief that her son was telling the truth. Under further questioning of the court and counsel, she stated: that she could render a verdict against the company fairly and impartially; that she felt it a duty to serve as a juror and would try to be fair and just in her deliberation; that she could evaluate her son's testimony and if she did not believe it was right she would form her own opinion to the contrary, and that she would be fair to both parties and render a fair and impartial verdict.

It is admitted that a litigant is entitled to a trial before an impartial and disinterested jury and each party must be given a reasonable opportunity to submit his cause to eight jurors, each of whom has an unbiased and unprejudiced mind. However, this right extends only to the jury finally selected to try the case. For this reason it is not necessary for this court to determine Mrs. Hurd's qualification to sit as a juror, as she was not finally selected, and took no part in the deliberations. She was excused because of a peremptory challenge exercised by appellants. It is, however, necessary to pass on appellants' contention that they were required to use one of their peremptory challenges to remove Mrs. Hurd, and therefore were unable to challenge another juror who was objectionable to them.

Appellants vigorously objected to the trial judge's ruling on the challenge of Mrs. Hurd for cause, but made no complaint to the trial court that the jury as finally selected had, as a member, any juror who was objectionable to them. No showing was made that appellants desired to exercise any more peremptory challenges than were used and for aught that appears, they were satisfied with the jury. Having failed to notify the trial judge that further challenges were desired, this court, if it were to sustain appellants' contention, would be required to presume prejudice without a showing that the appellants intended to or would have exercise more than the three peremptory challenges allowed them by statute, or the two afforded them if one were, in effect, denied.

This court has repeatedly held that unless all peremptory challenges are exhausted, an error in ruling on a challenge for cause is no ground for reversal. The reason prompting such a holding is that the complaining party has not been prejudiced by the ruling. The objectionable juror has been removed and the jury accepted within the number of peremptory challenges permitted by statute. The same reason can be applied to the case at bar. Here too, Mrs. Hurd was removed and if the appellants felt that by using a peremptory challenge to remove her they were denied a peremptory challenge that they would otherwise have used on some other objectionable juror, then they should have so informed the trial judge. Not having done so, they are not now in a position to claim the trial court required them to accept an objectionable juror. From the record before us, appellants, prior to taking of evidence, were satisfied with the jury as finally selected within the limits of their peremptory challenges. Should this court now permit them to say they would have used a peremptory challenge on one of the remaining jurors had the trial court excused Mrs. Hurd for cause? They make the contention in this court that they would have done so, but to permit the question now to be raised, would allow a party to willingly accept a jury before verdict and then claim error in this court because of an adverse verdict. If an erroneous ruling on a challenge for cause has the effect of depriving a party of a peremptory challenge, this court will not review the ruling unless the deprivation was of a challenge that the record affirmatively shows would have been used. To make this showing to the trial judge before the jury is sworn is a burden we place on the complaining party.

In the early case of Conway v. Clinton, 1 Utah, 215, this court reversed a judgment because disqualified jurors were permitted to sit. The majority opinion based its decision on the fact that two jurors should have been removed for couse that appellant had used all but one peremptory challenge and that he could not therefore have removed all disqualified jurors. In addition to the two jurors remaining on the jury, appellant in his assignment of error questioned the trial court's ruling on another juror, concerning which juror the court said: 'In impaneling of the jury, George W. Scott was challenged for cause by the Defendants, and the challenge denied, which is assigned as error. It appears, however, that he was subsequently challenged peremptorily by the same party, and was not sworn as a juror. Whether, therefore, the challenge was properly denied or not, as he did not serve as a juror, the Defendant was not prejudiced by the ruling, and the assignment of error cannot be...

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    ...between local law and federal law respecting the liability of interstate carriers under free passes. In Van Wagoner v. Union Pac. R. Co., Utah, 186 P.2d 293, 303, decided after the petition for certiorari in the present case was filed, the heirs sued to recover damages for the death of the ......
  • Berry By and Through Berry v. Beech Aircraft Corp.
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    ...are not inconsistent with the fundamental nature of the wrongful death action itself. See generally, Van Wagoner v. Union Pacific Railroad Co., 112 Utah 189, 186 P.2d 293, 303 (1947). But it is the Constitution that grants the right to bring a wrongful death action to all persons, and that ......
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    ...not, they did not sit as jurors; the defendant was not prejudiced by the ruling. Id. 9 P. at 408; see also Van Wagoner v. Union Pac. R.R., 112 Utah 189, 186 P.2d 293, 298-99 (1947); State v. Cano, 64 Utah 87, 228 P. 563, 568 (1924); State v. Thorne, 41 Utah 414, 126 P. 286, 291 (1912). As f......
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