McCarthy v. Cass Ave. & Fair Grounds Ry. Co.

Decision Date06 June 1887
Citation4 S.W. 516,92 Mo. 536
PartiesMcCarthy et al., Appellants, v. The Cass Avenue & Fair Ground Railway Company
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.

Affirmed.

F. X McCabe and A. R. Taylor for appellants.

(1) The court erred in overruling plaintiffs' challenges for cause directed against jurors Sawyer, Voorhis, Whyte, and Purcell. Each of the jurors named had a disqualifying bias. Sawyer answered that he did have a bias against such a case that he was prejudiced against all damage cases. There would have to be evidence, i. e., to remove prejudice. The other jurors were of the same disposition, and juror Purcell, who was foreman of the jury rendering the verdict, stated "that it would require pretty strong evidence to make him find a verdict in favor of the plaintiff in a damage case." These jurors, and each of them, had formed an opinion that might affect their verdict. Section 2796, Revised Statutes, governs as to qualifications of jurors in civil cases. (2) The jurors having formed an opinion against plaintiffs' case that might affect their judgment, they were disqualified as jurors in the case. McComas v. Ins. Co., 56 Mo. 573; State v. West, 69 Mo. 401. (3) The statute governing in criminal cases (R. S., sec. 1897) has no reference to civil trials. There the legislature has seen fit to make the forming of an opinion upon rumor or newspaper report no ground of incompetency. (4) The instruction numbered six, given for defendant, was error, in that it made it contributory on the part of the deceased child, if he failed to exercise all the care that he was capable of to avoid the injury by which he was killed. Such is not the law. The true rule is, that, if the child exercised ordinary care, according to his age and discretion, he was not guilty of contributory negligence. Donoho v. Iron Works, 76 Mo. 404. (5) Instruction numbered six, given for defendant, being on the whole case, cannot be cured by other and correct instructions given by the court.

Leonard Wilcox for respondent.

(1) The instruction for non-suit, asked by defendant at the close of plaintiffs' case, should have been given. (2) The challenges for cause, made by plaintiffs to jurors Sawyer and Purcell, were properly overruled. R. S., sec. 2796; State ex rel. v. Bank, 80 Mo. 626, 633; Baldwin v. State, 12 Mo. 223; Montgomery v. Railroad, 7 West. Rep. 320; State v. Burns, 85 Mo. 49; State v. Baber, 74 Mo. 292, 296; Eckert v. Transfer Co., 2 Mo.App. 36, 41; McComas v. Ins. Co., 56 Mo. 573. (3) Instruction numbered six, for defendant, is a correct statement of the law applicable to the facts of this case. Ostertag v. Railroad, 64 Mo. 424; Koons v. Railroad, 65 Mo. 596; Harlan v. Railroad, 65 Mo. 24; Dowling v. Allen, 88 Mo. 299. (4) Under plaintiffs' instructions, the jury must have found that defendant was not guilty of negligence as charged.

OPINION

Black, J.

The plaintiffs are the parents of John McCarthy, an unmarried minor. Their cause of action is based upon alleged negligence in violating an ordinance of the city of St. Louis, by which drivers and conductors of street cars are required to keep a vigilant watch for persons on foot, and especially children, either on the track or approaching the same, and, upon the first appearance of danger to such persons, to stop, in the shortest time and space possible.

The first contention is that the court erred in overruling the plaintiffs' challenge to four jurors for cause. The examination of one of them will present the question as to the others, and, as reported in the bill of exceptions, is as follows: Upon a special jury of eighteen being called and sworn, plaintiffs' counsel asked juror Sawyer whether, in an action brought to recover damages under the statutes of Missouri, on account of killing a person, he would have any bias or prejudice one way or the other; the juror answered that he did have a bias against such a case -- that he was prejudiced against all damage cases. Being asked if such bias existed at this time, he answered that it did. Asked if it would require evidence to remove said prejudice in this case, he said in answer: "Well, I suppose there would have to be evidence any way" -- that it would require strong evidence.

Counsel for the plaintiffs then made his challenge for cause, and, thereupon, the court asked the juror if he could hear the evidence in the case and render a verdict according to the law and the evidence; the juror answered that he believed he could. By the court: "Suppose a case in hand, one in which the evidence, in other respects, sustains plaintiff's cause of action, could you, under the evidence and instructions of the court, give the plaintiff a verdict?" Answer: "Yes, sir."

Plaintiffs' counsel then asked: "My question still is, would the prejudice that exists in your mind now, against all damage suits, including this, be such that it would require evidence to remove it before you could find a verdict for plaintiffs?" Answer: "If you will allow me I will answer it in this way -- if the evidence went to show that the party was entitled to damages, then, as a matter of justice, I would be in favor of awarding damages; otherwise, I could not." Q. "Would you start into the case with a prejudice against it which would require evidence to remove?" A. "Not in this case. I have no prejudice against this case, because I don't know anything about it."

It is not every opinion of a juror concerning the matter in litigation, which will operate as a disqualification. To have that effect, it must be such an opinion as will influence his judgment in the consideration of the cause. This is substantially the rule of the statute. Sec. 2796. Opinions formed, but not of a fixed character, and which readily yield to evidence, do not disqualify the juror. State v. Walton, 74 Mo. 270. If he have such a bias or prejudice against a class of cases that his judgment will be warped, then he should be set aside and not accepted as a juror; but it ought to appear that his...

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  • Senn v. Southern Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 2, 1892
    ...... ordinances must be fair and reasonable, otherwise the courts. will hold them void. ... whole are favorable to the appellant. McCarthy v. Railroad, 92 Mo. 536. (6) First. The jurors are. ......

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