Richardson v. Kansas City Railways Company

Citation231 S.W. 938,288 Mo. 258
PartiesVIRGINIA A. RICHARDSON v. KANSAS CITY RAILWAYS COMPANY, Appellant
Decision Date06 June 1921
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. O. A. Lucas, Judge.

Affirmed (on condition).

R. J Higgins and Mont T. Prewitt for appellant.

(1) The court erred in giving instruction numbered 1 requested by plaintiff. McManamee v. Railway, 135 Mo. 447; Northam v. Railway, 176 S.W. 229; State ex rel Coal Co. v. Ellison, 270 Mo. 653; Kirkpatrick v Railway, 211 Mo. 83; Degonia v. Railway, 224 Mo. 589; McGrath v. Railway, 197 Mo. 105; Davidson v. Transit Co., 211 Mo. 361; Roscoe v. Railway, 202 Mo. 588; State ex rel. Natl. Newspaper Assn. v. Ellison, 176 S.W. 11; Hoadland v. Dunham, 186 S.W. 1148; Reyburn v. Railway, 187 Mo. 575; Evans v. Trenton, 112 Mo. 404; McClanahan v. Railway, 147 Mo.App. 411; Knapp v. Dunham, 195 S.W. 1063; Kamoos v. Railway, 202 S.W. 436; Haines v. Railway, 203 S.W. 631. (2) The court erred in refusing to discharge venireman George Hogue, who was not a qualified juror. Vessels v. Light Co., 219 S.W. 85; Theobald v. Transit Co., 191 Mo. 417; Carroll v. United Rys., 157 Mo. App., 264; Gibney v. Transit Co., 204 Mo. 721; Heidbrink v. United Rys., 133 Mo.App. 42; Billmeyer v. Transit Co., 108 Mo.App. 9. (3) The court erred in failing and refusing to grant defendant a new trial for the reason that juror George R. Barker became a disqualified juror during the trial of this cause. Vessels v. Light Co., 219 S.W. 85; Theobald v. Transit Co., 191 Mo. 417; Carroll v. United Rys., 157 Mo.App. 264; Gibney v. Transit Co., 204 Mo. 721; Heidbrink v. United Rys., 133 Mo.App. 42; Billmeyer v. Transit Co., 108 Mo.App. 9. (4) The court erred in permitting incompetent testimony concerning the alleged mental condition of plaintiff. Hall v. Coal Co., 260 Mo. 373; Shafer v. Dunham, 192 Mo.App. 502; Fink v. United Rys., 219 S.W. 680. (5) The court erred in refusing to sustain defendant's motion for a new trial for all the reasons heretofore assigned and because the verdict is excessive. Rigg v. C. B. & Q. Ry., 212 S.W. 879; Hulse v. St. Joseph Ry. Co., 214 S.W. 155; Dominick v. Mining Co., 255 Mo. 467; Stolze v. Transit Co., 188 Mo. 581; Norris v. Railway, 239 Mo. 704; Lyons v. St. Ry., 253 Mo. 163; Bragg v. St. Ry., 192 Mo. 365; Willits v. C. B. & Q. Ry., 221 S.W. 65.

Harry G. Kyle and Horace G. Pope for respondent.

(1) The court did not err in giving Instruction No. 1 requested by plaintiff. Kame v. Railway, 254 Mo. 175; Lange v. Railway, 208 Mo. 475; Bank v. Robinson, 185 Mo.App. 582; Newton v. Harvey, 202 S.W. 249; Woods v. Railroad, 188 Mo. 229; Aqua v. Contracting Co., 203 S.W. 483; Boesel v. Wells Fargo, 260 Mo. 474; Lawbaugh v. Min. Co., 202 S.W. 619; Meily v. Railroad, 215 Mo. 587; Tranbarger v. Railroad, 250 Mo. 59; De Rousse v. West, 200 S.W. 786; Barnard v. Coal Co., 189 Mo.App. 423. (2) The court did not err in refusing to discharge venireman George Hogue, who was a qualified juror. McManama v. Railroad, 175 Mo.App. 43; Tawney v. Rys., 262 Mo. 612; State v. Rasco, 239 Mo. 535, syl. 6; Oakley v. Richards, 204 S.W. 507; Shore v. Dunham, 178 S.W. 903; Albert v. Railway, 192 Mo.App. 674; State v. Herring, 188 S.W. 172; Joyce v. Railroad, 219 Mo. 344; Gardner v. Railway, 177 S.W. 737. (3) The court did not err in failing and refusing to grant defendant a new trial because of defendant's claim that juror George R. Barker became a disqualified juror during the trial of this cause. Shafer v. Railways, 201 S.W. 614; Partello v. Railroad, 240 Mo. 133. (4) The court did not permit incompetent testimony to be given concerning the mental condition of the plaintiff. Martin v. Railways, 204 S.W. 589. (5) The court did not err in refusing to grant defendant a new trial because of its claim that the verdict is excessive. Perrette v. Kansas City, 162 Mo. 238; Hays v. Railway, 183 Mo.App. 608; Peaslee v. Transfer Co., 120 Minn. 347; Hurst v. Railroad, 219 S.W. 566; Highfill v. Independence, 189 S.W. 801; Meeker v. Power Co., 216 S.W. 923; Wagner v. Construction Co., 220 S.W. 890.

OPINION

JAMES T. BLAIR, J.

Respondent recovered judgment for damages for injuries she alleges she received when a truck in which she was seated was brought into collision with one of appellant's cars, and this appeal followed.

On July 4, 1916, a picnic party of eighteen young men and women of Kansas City were on their way to Fairmount Park. They were being conveyed in a motor truck, and had proceeded to a point on Washington Park Boulevard, a short distance east of Cambridge Avenue, when they reached the tracks of the St. Louis & San Francisco Railway Company, which there cross the avenue about at right angles. The evidence tended to show that a long freight train was then passing over the crossing; the truck was stopped upon appellant's east bound track a few feet west of the crossing, and stood there facing east toward the passing train for three or four minutes; one of appellant's cars approached from the west at a speed of twelve or fifteen miles an hour; when the motorman was more than four hundred feet distant from the truck he saw it upon the track upon which his car was proceeding; the back of the truck was toward the street car, and respondent was seated with her back toward the car; the track was almost level and was dry, and the car could have been stopped within a distance of thirty or forty feet; there was a safety stop for east-bound cars, near the place where the truck was standing and between it and the point from which the motorman first saw it; the motorman sounded no signal or warning, did not check his car at all, but ran it at undiminished speed past the safety stop and against the truck, and thereby seriously injured respondent. There was a verdict for $ 20,000. The trial court required a remittitur of $ 8000, and judgment was entered for $ 12,000. Appellant contends the court erred (1) in refusing to sustain a challenge for cause to juror Hogue; (2) in refusing to discharge the jury because juror Barker, appellant contends, became disqualified during the trial; (3) in admitting evidence concerning respondent's mental condition; (4) in giving and refusing instructions; and (5) in permitting judgment for an excessive sum.

1. On the voir dire examinations of the panel, George Hogue, in answer to a question of appellant's counsel, stated he did not think the "city got a square deal" on the "franchise proposition." The reference was to a transaction in 1914 between the city and appellant which concerned appellant's franchise. Hogue said he had no prejudice against appellant at the time of the trial in June, 1918; that he could not say he had a prejudice against appellant, but still thought the city did not "get a square deal" in 1914. In answer to questions he said, in effect, that his view of the franchise transaction would have nothing to do with his attitude toward appellant in this case; that he "would take the evidence," and that the question concerning appellant's contract rights for operation would not have anything to do with a claim for injuries inflicted in the operation of the road. Counsel argue Hogue admitted he had an existing prejudice against the company. Into the questions he propounded, counsel quite skillfully wove implications and assumptions of such a prejudice. The juror avoided these as best he could, and his answers show he did not intend to adopt them. He distinguished between a "prejudice" and his opinion concerning the matter of the 1914 franchise. His whole examination shows he was not satisfied with that agreement, but, properly understood, shows no more.

It is true that the question concerning a juror's qualification is to be tried by the court and not by the juror (Theobald v. Transit Co., 191 Mo. 395, 90 S.W. 354), but it is also true that after the court has tried it the ruling comes here accompanied by a presumption of correctness which is overthrown only when the record shows the ruling was clearly against the evidence. [Theobald v. Transit Co., supra, and cases cited.] The record does not convict the juror of prejudice. He, in effect, denied the assumption by counsel that he entertained such a feeling. The character of the matter with respect to which the juror did not approve appellant's course was not, in its nature, so far as the record shows, such as to prove prejudice in 1918 and disprove the juror's denial of prejudice. Hogue was apparently candid with court and counsel. He recognized the irrelevancy of the franchise question to the issue in this case. He thought it "had nothing to do with it" and that the evidence should govern. He said the evidence would govern him. We do not think the record shows the trial court erred in overruling the challenge for cause.

II. The case went to trial on June 5, 1918. The taking of evidence was finished during the afternoon of Monday, June 10, 1918. The instructions were then given and the arguments followed. Thereafter, but at some time on June 10th, a unanimous verdict was returned. In support of its motion for new trial appellant filed the affidavit of one of its claim-agents in which it was stated that on June 8, 1918, the wife of one of the jurors, George R. Barker, was injured while riding with her husband as a passenger on one of appellant's cars. Appellant also filed the affidavit of Meyers in which Meyers stated that on June 14, 1918, he presented to Barker for his signature a form of affidavit; that in this form it was set out that Barker was a foreman of the jury in this case and that Barker and his wife were on one of appellant's cars on the evening of June 8, 1918, and Mrs. Barker was injured while riding as a passenger thereon. It was also set out in this form that Barker was present when his wife...

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