90 S.W. 354 (Mo. 1905), Theobald v. St. Louis Transit Company

Citation:90 S.W. 354, 191 Mo. 395
Opinion Judge:MARSHALL, J.
Attorney:Glendy B. Arnold for appellant; Boyle, Priest & Lehmann and George W. Easley of counsel. Scullin & Chopin and Daniel Dillon for respondent.
Judge Panel:MARSHALL, J. Brace, P. J., concurs; Valliant and Lamm, JJ., concur in paragraphs 1 and 2, and in the result.
Case Date:November 22, 1905
Court:Supreme Court of Missouri

Page 354

90 S.W. 354 (Mo. 1905)

191 Mo. 395




Supreme Court of Missouri, Division One

November 22, 1905

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.


Glendy B. Arnold for appellant; Boyle, Priest & Lehmann and George W. Easley of counsel.

(1) The court erred in overruling defendant's challenges to jurors Hartman and Bensberg. Billmyer v. Railroad, 108 Mo.App. 6; People v. Reyes, 5 Cal. 347; Ins Co. v. Schueller, 60 Ill. 465; McLaran v. Birdsong, 24 Ga. 365; Doherty v. Lord, 28 N.Y.S. 720; Commonwealth v. Brown, 9 Am. St. Rep. note, p. 744; Const., art. 2, sec. 28. (2) The court erred in refusing to give to the jury defendant's instruction in the nature of a demurrer, offered at the close of plaintiff's evidence and renewed at the close of the whole case. McGauley v. Railroad, 179 Mo. 583; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 18 Mo. 534; Zurfluh v. Railroad, 46 Mo.App. 636. (3) Instruction 2 given for plaintiff is erroneous. There is no reliable evidence in the record that the car was being run at a negligent speed. The witnesses testifying in support of this charge showed no qualification whatever to give such evidence. Petty v. Railroad, 179 Mo. 666; Mathieson v. Railroad, 92 N.W. 639; Hoppe v. Railroad, 161 Wis. 357. (4) The court erred in giving instruction 3. This instruction was error because it required the motorman to keep constant and vigilant watch on the track ahead. This is not the law. The motorman is required to use ordinary care only in watching for persons on or approaching the track. (5) Instruction 6 should not have been given. The humanitarian rule is not applicable to the facts in this case. McGauley v. Railroad, supra; Holwerson v. Railroad, 157 Mo. 216. (6) Defendant's refused instruction 6 should have been given, as follows: "If the injury and death of deceased was due to or caused by the mutual or joint negligence of deceased and defendant's motorman, then the plaintiff cannot recover." Boyd v. Railroad, supra; Watson v. Railroad, supra; McManamee v. Railroad, 135 Mo. 440; Kries v. Railroad, 148 Mo. 321; Peterson v. Railroad, 156 Mo. 552; Holwerson v. Railroad, supra; McCarty v. Rood Hotel Co., 144 Mo. 402; Kelney v. Railroad, 101 Mo. 67; Tanner v. Railroad, 161 Mo. 497; Conrad Grocer Co. v. Railroad, 89 Mo.App. 534; Graham v. Railroad (N.H.), 55 L.R.A. 426, and note.

Scullin & Chopin and Daniel Dillon for respondent.

(1) The trial judge is the proper person to determine the qualification of a juror, and the cases are unanimous in holding that his findings on this subject are to be treated as findings on any other question of fact, and will not be disturbed unless an abuse of discretion is shown. State ex rel. v. Bank, 80 Mo. 632; Thompson on Trials, sec. 100; State v. Walton, 74 Mo. 270; State ex rel. v. Chatham Bk., 80 Mo. 627; State v. Williamson, 106 Mo. 162; State v. Bauerle, 145 Mo. 15; Montgomery v. Railroad, 90 Mo. 446; McCarty v. Railroad, 92 Mo. 536; State v. Cunningham, 100 Mo. 386. (a) But even if the court erred in overruling the challenges to the proposed jurors, it worked no prejudice to defendant, and is no reason for reversing the judgment. The record shows that neither of the two jurors who were challenged were on the jury who were finally selected to try the case. As defendant had an unobjectionable jury to try the case, it could ask nothing more. If a cause has been tried before a competent, impartial and unobjectionable jury, the defeated party has no ground of complaint so far as the jury is concerned. The object of the law is to secure just such a jury, and when that has been accomplished the purpose of the law is fulfilled. Burt v. Panjaub, 99 U.S. 180; Hayes v. Missouri, 120 U.S. 71; Woolen v. State, 99 Tenn. 200; N.P.R. v. Herbert, 116 U.S. 642; Spies v. Illinois, 123 U.S. 168; Pool v. Ins. Co., 94 Wis. 453; Finkelstein v. Barnett, 17 Misc. 564; Ferridy v. Silser, 4 How. (Miss.) 519; Barnett v. Dalton, 69 Miss. 617; State v. Tibbs, 48 La. Ann. 1281; State v. Willis, 43 La. Ann. 406; Rash v. State, 61 Ala. 90; Mabrey v. State, 50 Ark. 498; Holt v. State, 9 Tex App. 579; Bank v. Schufelt, 82 S.W. 927. The decisions in Missouri are in harmony with the foregoing. Lisle v. State, 6 Mo. 432; Ecket v. Transfer Co., 2 Mo.App. 43; O'Brien v. Iron Works, 7 Mo.App. 257; Hegney v. Head, 126 Mo. 626. Under our statute, section 865, Revised Statutes 1899, this court will not reverse the judgment unless it shall believe that error was committed against appellant and materially affecting the merits of the action. This section being section 2303, Revised Statutes 1889, is referred to in the opinion in Hegney v. Head, supra. (b) In cases where it is held that the error of the court is not cured by excluding the objectionable juror by means of peremptory challenge, if in excluding such juror the party exhausts his peremptory challenges, it must further be shown that a juror was forced on the party against his will after he had exhausted his peremptory challenges. In other words, if no objection is made against any of the jurors who tried the case, there was no ground to complain. Thompson on Trials, secs. 114, 115, 120; Spies v. People, 122 Ill. 257; Pool v. Ins. Co., 94 Wis. 453; Ford v. Umatilla County, 15 Ore. 313; Colton v. State, 32 Tex. 642; Holt v. State, 9 Tex.App. 579; Johns v. State, 55 Md. 363; Bank v. Schufelt, 82 S.W. 927. (c) Even in cases where it was said that the error in overruling challenge might not be cured, if the party exhausted his peremptory challenges in getting rid of the objectionable juror, it was held that it must be made to appear affirmatively by the record that party had exhausted his peremptory challenges. Burt v. Panjaub, 99 U.S. 181; Haggard v. Petterson, 107 Iowa 419; State v. Smith. 49 Conn. 376; State v. Stockman, 58 P. 1032, 9 Kan.App. 422; Railroad v. Wissendorf, 39 S.W. 132, 69 Tex. 650; Pool v. Ins Co., 94 Wis. 453; State v. Kluesman, 53 Minn. 541; People v. McGungill, 41 Col. 429; Fleeson v. Mining Co., 3 Nev. 164; Ford v. Umatilla County, 15 Ore. 313; Railroad v. Terrell, 69 Tex. 651; Snow v. Starr, 75 Ky. 414; Wolf v. Perryman, 82 Tex. 115; Mabrey v. State, 50 Ark. 498; People v. Rush, 113 Mich. 541; People v. Fowler, 104 Mich. 449; Bank v. Schufelt, 82 S.W. 927. (2) The second point made in appellant's brief is that the court erred in refusing defendant's instruction in the nature of a demurrer to the evidence. There was no error in refusing this instruction. In no view of the case, consistent with the evidence, would the court have been justified in taking the case away from the jury. Ayers v. Railroad, 190 Mo. 228; Schafstette v. Railroad, 175 Mo. 142; Schaub v. Railroad, 87 S.W. 85. In considering whether or not the court did right in refusing at close of plaintiff's evidence to take the case from the jury, the only question to be considered is whether or not the evidence tended to prove that defendant was guilty of negligence. There is no claim made in appellant's brief that the court ought to have taken the case from the jury on the ground that the negligence of the deceased directly contributed to his injury. On the evidence no such claim could be made. The law presumes that the deceased was in the exercise of ordinary care until the contrary is made to appear. Busching v. Gas Light Co., 73 Mo. 219; Wilbur v. Railroad, 164 Mo. 198. (3) The third point in appellant's brief is that the court erred in giving plaintiff's instruction 1. The objection which appellant urges against this instruction is that it authorized a recovery if deceased was not warned of the approaching car by gong or otherwise. The instruction further required the jury to find that the failure of the motorman to sound his gong or warn the deceased in any manner of the approach of the car directly contributed to, and was the proximate cause of the collision, and that the deceased was in the exercise of ordinary care. If the deceased was free from negligence in being on the track, as the jury were required to find under this instruction, then under the circumstances shown by the evidence, it was the duty of the motorman to sound his gong or give some warning of the approach of the car, and not run into deceased from behind without any warning whatever. And the motorman knew that this was his duty, for he said he never came down there at that time of night without ringing the bell. And if the failure of the motorman to ring his bell on this trip was the direct cause of the collision, then defendant was liable. In any view of the evidence, it was incumbent on the motorman to give warning of the approach of his car and not run into the wagon without warning. If there was light enough to see the wagon far enough ahead of him, certainly he should have given warning before running into the wagon. If it was so dark that he could not see a wagon on the track in time to avoid colliding with it, it certainly was his duty to ring his bell and give notice to drivers of teams who might be on the track ahead of him of the approach of the car. Many teams traveled that street and they all drove in the tracks, as horses could not walk on the street outside the tracks. Consequently the motorman knew that it was almost certain that there would be vehicles on the track in front of him as he came down that street that evening. The statement in this connection, made in defendant's brief, that the deceased had as good, if not better, opportunity to discover the car and avert injury than the motorman had to discover the deceased and avoid the collision, is unreasonable. It can only be characterized as absurd to say that a man driving his team and necessarily looking forward, has as good an opportunity to notice a car approaching his wagon from the rear, as the motorman in front of the car...

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