Williams v. Fleming
| Decision Date | 12 April 1926 |
| Docket Number | 25130 |
| Citation | 284 S.W. 794 |
| Parties | WILLIAMS v. FLEMING et al |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied May 24, 1926.
Charles N. Sadler and Mont T. Prewitt, both of Kansas City, for appellants.
Virgil Yates and Mosman, Rogers & Buzard, all of Kansas City, for respondent.
The plaintiff was struck by a street car being operated by defendants. The wheels passed over his left leg, making necessary its amputation above the knee. He was 3 1/2 years old at the time. The injury occurred on Indiana avenue, a street extending north and south in Kansas City, at a short distance north of Thirty-Third street, a street extending east and west. There were two tracks on Indiana avenue, and the car was moving north on the east track. The time was not far from the noon hour, and the day was clear. There is a slight down grade northward from Thirty-Third street.
The car which struck the plaintiff stopped at Thirty-Third street and took on one or more passengers. Several witnesses testified that a tall, dark-haired man got on the front end of the car at Thirty-Third street, and, as the car moved northward, this man stood near the motorman and the motorman was not looking forward as the car approached the place where it struck plaintiff, but had his head turned toward this passenger; that the car was moving at a speed of 5, 7, or 8 miles an hour at the time. For plaintiff the testimony was that the street car going at that speed under the conditions existing could be stopped in 5 to 7 feet.
There was a drug store on the west side of Indiana avenue, a short distance north of Thirty-Third street. A wagon, handling ice and ice cream, had stopped near the front of this drug store. There was testimony for plaintiff that he had been to this wagon, and thence had started to cross to the east side of Indiana avenue; that he started to cross about the time the street car moved north after its stop at Thirty-Third street. The double tracks of the railway occupied the center of Indiana avenue, and there was a distance of 13 feet from the outer rail to the curb line on either side.
The testimony for plaintiff was that, when he got to the west rail of the north-bound track, the street car was 12 or 15 feet south of him; that no warning was sounded; that the car did not slacken its speed, but, moving at a speed of 5, 7, or 8 miles an hour, continued until the plaintiff was struck by it; that he was picked up on the fender and carried 40 or 50 feet; that he then rolled or fell off the fender, and the car went over him and continued on for a distance of 75 feet or more before it was stopped.
Defendants' evidence was that the plaintiff was playing near a steel trolley pole set inside the east curb of Indiana avenue, and distant about 120 feet north from Thirty-Third street; that the car moved north from Thirty-Third street at a speed of 10, 12, or 15 miles an hour; that, when the front end of the car was about 18 or 20 feet south from the trolley pole, the plaintiff ran out toward the north-bound track, and got on or near the east rail of that track, and was struck by the fender, causing him to roll so that his left leg was mashed under the wheels; and that the car ran one or two car lengths after striking him.
There were seven witnesses who testified that no warning was given as the street car approached the plaintiff, and four witnesses testified that the motorman was not looking forward at the time, but had his head turned and was looking at the passenger who stood near him. The defendants offered a demurrer at the close of plaintiff's case, and at the close of the whole case; but the demurrer is not insisted upon here, and the foregoing sufficiently states the character of the evidence, except such statement as may be necessary in connection with certain assignments of error hereafter to be noticed. The negligence charged against defendants in the petition was failure to sound a signal or warning, failure to keep a reasonable and vigilant lookout for plaintiff and others, failure to stop the street car after plaintiff was thrown upon the fender, and failure to stop the car under the humanitarian doctrine. The answer was a general denial, and a plea of contributory negligence on the part of the plaintiff.
I. The first assignment of error is directed against the refusal of the court to grant defendants a new trial, upon the ground that George F. Taliaferro, one of the jurors joining in the unanimous verdict for plaintiff, was not properly qualified; shown, it is insisted, by the affidavit attached to defendants' motion for a new trial. Upon the voir dire examination, counsel for defendants inquired if there was any one who had been employed by the street car company. This juror indicated that he had been so employed, and he was asked how long it had been since he was employed. He answered the year 1908, and that he had been employed in the capacity of street car conductor. He was then asked whether there was anything in the relationship he had with them that would cause him any embarrassment in sitting as a juror in this case. His answer was: 'I resigned in good standing.' The inquiry was not farther pursued. The affidavit filed in support of the motion for a new trial stated that the affiant had examined the records of the street railway company; that said records showed that the juror named was employed as a conductor by the street railway company from June 9, 1908, and continued in such employment until December 14, 1909; that the records showed the circumstances under which the juror left said employment; that the circumstances so shown were that on December 12, 1909, said Taliaferro was moving a street car out of its place, in the barn, in the absence of his motorman, which he was not authorized to do under his employment; that in doing so, he caused the car to collide with another car, damaging the same, for which act the superintendent took him off his run for that day; and that two days later he resigned from the service. The affidavit had the further statement that the records showed that the superintendent intended to keep him off his run permanently.
In opposition to the foregoing affidavit, counsel for the plaintiff joined in an affidavit, in which they stated that they remembered the testimony of Taliaferro on his voir dire examination; that in his examination he stated he had no ill will or prejudice against the street railway company by which he was employed at the time mentioned, nor against the defendants; that in answer to inquiry by defendants' counsel he stated he could give defendants a fair and impartial trial; and that defendants' counsel, in his closing argument to the jury, referred to the fact that the juror had been in the employ of the street railway company. The affidavit further set forth that in 1908 the Kansas City Railways Company was not in existence; that the company for which the juror had worked was the Metropolitan Street Railway Company, which was in no way connected with the present litigation.
Upon this point counsel call our attention to several cases: Vessels v. Light & Power Co. (Mo. Sup.) 219 S.W. 80; Theobald v. Transit Co., 191 Mo. 395, 90 S.W. 354; Carroll v. United Railways Co., 157 Mo.App. 247, 137 S.W. 303; Gibney v. Transit Co., 204 Mo. 704, 103 S.W. 43; State v. Wyatt, 50 Mo. 309; State v. Burnside, 37 Mo. 343; Pietzuk v. Kansas City Railways Co., 289 Mo. 135, 232 S.W. 987. These cases, and others that could be mentioned, deal with the qualification of jurors, and the rulings of trial courts thereon, from various angles. The law is settled that a litigant is entitled to a panel of 18 qualified men, upon whom he may exercise the right of peremptory challenge.
Defendants insist that Taliaferro was disqualified, and defendants did not have a panel of more than 17 qualified men; that the voir dire examination of the juror did not disclose his disqualification, but that the attention of the trial court was directed to the matter as soon as defendants learned the real situation.
It is urged that it is the right and duty of the court to determine the qualifications of the juror from the facts, and that the conclusion of the court should not rest upon the mere stated conclusion of the juror himself; that he had no prejudice, or had divested himself of the prejudice he formerly had; and that, under the rule stated (Theobald v. Transit Co.) and the facts disclosed here, the court erred in overruling the motion for a new trial.
We do not regard it as necessary to refer extensively to the situations disclosed in the several cases cited, or in others. In Gibney v. Transit Co. the juror had stated that he had no relations with the defendant company, and had no prejudice against it. The after-acquired information was that he was a leader in a strike against the company which occurred about 3 years prior to the trial, and that the strike was characterized by much violence and bitterness, and had lasted for several months.
In State v. Wyatt, the juror had not disclosed that he had expressed an opinion as to the guilt or innocence of the defendant, but the after-acquired information given was that, prior to the trial, he had expressed the opinion that the defendant was guilty and ought to be punished.
In Theobald v. Transit Co. the juror disclosed the fact that at one time he had been thrown from a car and injured, and had brought a suit against the defendant company or its predecessor, and that he was prejudiced against the company and prejudiced against the testimony of employees of the company; but afterward, upon a continuance of his examination, he stated that, while he had been prejudiced, he was so no longer. In that case it was held that...
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