Burtnett v. Burlington & M. R. R. Co.
| Decision Date | 06 August 1884 |
| Parties | GRANT BURNETT, BY HIS NEXT FRIEND, LUCY G. BURNETT, PLAINTIFF IN ERROR, v. THE B. & M. R. R. CO., DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cass county. Tried below before MORRIS, J., sitting for POUND, J.
REVERSED AND REMANDED.
A. N Sullivan and J. B. Strode, for plaintiff in error, on competency of juror, cited: Profatt Jury Trial, 177. Hathaway v. Helmer, 25 Barb., 29. On negligence cited: 1 Thompson, 157, et seq., Id., 1105, 1108. Thurber v. Harlem Bridge, 60 New York, 326. McGovern v. N Y. Central, 67 Id., 418. Cooley Torts, 675. New Haven v. Vanderbilt, 16 Conn. 421.
T. M. Marquett and J. W. Deweese, for defendant in error, cited: 2 Rorer Railways, 1032. Allyn v. Boston, 105 Mass. 77. Butterfield v. Western, 10 Allen, 532. Burns v. Boston, 101 Mass. 50. Mullherrin v. Delaware R. R., 81 Penn. State, 366.
This action was brought by the plaintiff against the defendant, to recover for personal injuries alleged to have been caused by the negligence of the employes of the defendant in running one of its locomotives. On the trial of the cause in the court below, a verdict was rendered in favor of the defendant and the action dismissed. The first error assigned is in overruling the challenge to one B. Humpall, called as a juror. The examination of Mr. Humpall is as follows:
Q. Are you in the employ of the defendant at present?
A. I am, sir.
The attorneys for the plaintiff thereupon challenged the juror for cause.
Q. By the court. What position do you occupy?
A. I work in the carpenter shop.
Q. By the court. Are you of your own knowledge acquainted with any of the facts in this case?
A. I am not.
Q. By the court. Do you have any opinion at the present as to which party should prevail?
A. No.
Q. By the court. Have you ever formed or expressed an opinion as to which party should prevail?
A. No.
Q. By the court. Have you any bias or prejudice in favor or against either of the parties to this action?
A. No, sir, that I know of at present.
The challenge was thereupon overruled, to which the plaintiff excepted.
A note is made in the record by the judge, that after the challenge for cause was overruled by the court the plaintiff peremptorily challenged the juror B. Humpall, who was thereupon excused.
At common law it is good cause for challenge that a juror is next of kin to either party within the ninth degree; that he has been an arbitrator on either side; that he has an interest in the cause; that there is an action depending between him and the party; that he has taken money for his verdict; that he has formerly been a juror in the same cause; that he is the party's master, servant, counselor, or attorney. 3 Black. Comm., 363. And the common law in that regard is in force in this state. Ensign v. Harney, 15 Neb. 330, 18 N.W. 73. Jurors must be indifferent between the parties and have neither motive nor inducement to favor either. The fact that the defendant is a corporation does not change the rule nor render an employe eligible to sit on a jury in an action where the corporation is a party. The court therefore erred in overruling the challenge. But as it appears that the juror was challenged peremptorily and excluded from the jury, and the record fails to show that the plaintiff exhausted his peremptory challenges, it was error without prejudice. Palmer v. The People, 4 Neb. 68. Freeman v. The People, 4 Denio 10.
2. Dr. Livingston, of Plattsmouth, the defendant's principal surgeon, was called as a witness for the plaintiff, and testified to the extent of the injuries. He was then asked by the defendant's attorney whether or not his services for attendance on the boy were paid for by the boy or his mother or any one for them. The plaintiff's attorneys objected to the question, because there was no claim for compensation for such services. The objection was overruled, and he answered that, "The treatment and all the supplies necessary to the treatment were supplied without cost to the patient."
Q. That is the rule in all cases?
A. That is the rule in all cases.
Had there been any claim in the petition for compensation because of money expended for this purpose, the question would have been proper. But nothing is claimed on that ground, and the answer must have been prejudicial by diverting the attention of the jury from the real question at issue.
3. It appears from the record that in August, 1882, the plaintiff, who was then between ten and eleven years of age, was walking on the defendant's railroad track in the city of Plattsmouth, at a point on or near Second street, about thirty-three feet north of the north line of Main street. Second street at that point is covered with railroad tracks and is not used by the public at large. The defendant's depot is a short distance east of Second street, and a few feet south of Main street, and persons in passing to and from the depot are compelled to cross nearly all of said tracks. The plaintiff in his testimony states:
Q. Who came to the switch?
A. Mr. Lee Parker. He put the switch on my track. He got on the engine and jumped off again and caught me, and the engine went over me and never stopped till it got even with the other side of Main street.
He also states that he was thirty or forty feet from the switch at the time of the accident, and that when the switch was turned for the engine to pass over the tract he...
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