4 S.W. 516 (Mo. 1887), McCarthy v. Cass Ave. & Fair Grounds Ry. Co.

Citation:4 S.W. 516, 92 Mo. 536
Opinion Judge:Black, J.
Party Name:McCarthy et al., Appellants, v. The Cass Avenue & Fair Ground Railway Company
Attorney:F. X. McCabe and A. R. Taylor for appellants. Leonard Wilcox for respondent.
Case Date:June 06, 1887
Court:Supreme Court of Missouri

Page 516

4 S.W. 516 (Mo. 1887)

92 Mo. 536

McCarthy et al., Appellants,


The Cass Avenue & Fair Ground Railway Company

Supreme Court of Missouri

June 6, 1887

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


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...

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