Montgomery v. Wabash, St. L. & P. Ry. Co.

• Decision Date: 20 December 1886
• Citation: 90 Mo. 446,2 S.W. 409
• Parties: MONTGOMERY v. WABASH, ST. L. & P. RY. CO.
• Court: Missouri Supreme Court

2 S.W. 409

90 Mo. 446

MONTGOMERY v. WABASH, ST. L. & P. RY. CO.

Supreme Court of Missouri.

December 20, 1886.

1. JURY — CHALLENGE FOR CAUSE DISALLOWED — ANSWER AS TO BIAS — RAILROAD COMPANY — PREJUDICE.

Where, on the trial of an action for damages against a railroad, a juror, challenged for cause, answers to a question whether, if, in his opinion, when he heard the evidence, it were equally balanced, he would find against the defendant, that he would so find; but, in answer to further questions by the court, answers that he has not formed or expressed any opinion as to the rights of the parties; that he has no prejudice against defendant, and will determine the cause according to the evidence, and instructions of the court,—the court is justified in disallowing, in its discretion, the challenge of such juror for cause.

2. RAILROAD COMPANIES — FENCES — DOUBLE DAMAGES — INJURIES TO ANIMALS — INSTRUCTIONS.

In an action against a railroad company for damage to plaintiff's cows, caused by their getting on defendant's track at or near a farm crossing, brought for double damages under the Missouri statute which makes defendant liable for double damages done by its cars, etc., to cattle on the road, or by reason of escaping from or coming on the inclosure, "occasioned, in either case, by a failure to construct or maintain fences," an instruction by the court which, after defining a legal fence, tells the jury that, if the cows got upon the track at a place where defendant failed to maintain a lawful fence, or at a necessary farm crosssing, where defendant had failed to erect and maintain a gate of the height prescribed by statute, with a latch and hook, and were killed by defendant's cars, then the verdict should be for plaintiff, is erroneous for not containing the element that the cattle were damaged by reason of the failure of defendant to maintain a fence or gate of lawful height, or to have the gate hung with a latch or hook.¹

Appeal from circuit court, Clark county.

Action for double damages. Judgment for plaintiff. Defendant appeals.

Wood & Montgomery, for respondent, Montgomery. W. H. Blodgett, for appellant, Wabash, St. L. & P. Ry. Co.

BLACK, J.

This is a suit for double damages for two cows killed by the defendant's cars at a farm crossing where the road passes through plaintiff's lands.

The court overruled the defendant's challenge for cause to two jurors. The challenge to each was for substantially the same reason, and the evidence of one only need be given. He made the following statements in answer to questions asked by the defendant and the court. "Question. I understand you to say, in answer to question propounded, that if, in your judgment, the evidence in this case, of Montgomery v. Wabash, St. L. & P. Ry. Co., was equally balanced, you would be inclined to find against the railroad? Answer. Yes, sir. Q. And that you say your answer is common to all railroads, — you would be just as willing to find against the Wabash, as against any other road? And if, in your opinion, when you had heard the evidence in this case, it was equally balanced, you would find against the defendant? A. Yes, sir. Q. (By the Court.) Do you give it as your opinion that if, in trying of this case, it appears that the evidence is equally balanced, you would be more inclined to find against the railroad than plaintiff? Are you prejudiced against the railroads? A. Yes, sir; I think I would find against the railroad the quickest." Further answering questions asked by the court, this juryman said: "I have not formed or expressed any opinion as to the rights of the parties in this case. I have never heard of the case. I have no prejudice against the Wabash, St. Louis & Pacific Railroad Company in particular. I would determine the cause according to the evidence and the instructions of the court. I am not related to the plaintiff. I would be governed by the evidence, and the instructions given to the jury by the court."

In Hudson v. St. Louis, K. C. & N. R. Co., 53 Mo. 536, the jurors were...