Croft v. Chi., R. I. & P. Ry. Co.

• Decision Date: 14 November 1906
• Court: Iowa Supreme Court
• Parties: CROFT v. CHICAGO, R. I. & P. RY. CO.

134 Iowa 411

109 N.W. 723

CROFT

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Nov. 14, 1906.

Appeal from District Court, Muscatine County; D. V. Jackson, Judge.

Action to recover damages growing out of a railway accident. From a judgment in favor of plaintiff the defendant appeals. Affirmed.Carroll Wright, J. L. Parrish, and Carskaddan, Burk & Pepper, for appellant.

E. M. Warner and Richman & Richman, for appellee.

BISHOP, J.

The accident out of which this action arose is the same as that upon which the case of Laura M. Croft v. Railway (decided at the present term) 108 N. W. 1053, was based. The general circumstances of the accident are related in the opinion in that case, and we need not here repeat. This plaintiff was the station agent of the defendant at Buffalo, and the husband of said Laura M. Croft. The facts of Mrs. Croft's injury will be remembered, and the additional fact may now be stated that the minor child of the Crofts, a girl about 6 years of age, who had gone into the office of the depot with her mother, was instantly killed in the accident. This action is brought by plaintiff to recover the expense incident to the funeral and burial of his child, and for the loss of her services during the period of minority. In a second count he also seeks to recover the expense incurred by him in caring for his injured wife and his own time and service in attending upon her, the expense of like character which is certain for the future, and the loss of her service, past and future. The answer to each count was a general denial.

1. After answer, the defendant presented a motion for change of venue, and error is assigned on the action of the court overruling the same. The motion was based on prejudice of the citizens of the county, and was supported by the affidavit of one of the attorneys for defendant, being the attorney who tried the case of Laura M. Croft against the defendant in said county, and also the joint affidavit of 7 citizens of said county, who aver that a strong feeling of hostility against the defendant has existed in said county for years; further that, in view of the wide notoriety which the Croft Cases have attained in said county, and the comment affiants had heard and read thereon, they do not believe the defendant can have a fair trial in said county. This showing was met by the counter affidavits of two of the attorneys for plaintiff, supplemented by the joint affidavit of 14 citizens of the county, who aver that no prejudice exists in the county against the defendant such as would prevent a fair trial. As well understood, a motion for change of venue appeals to the discretionary power of the trial court, and this court will not interfere unless a case of abuse of discretion is made to appear. We cannot say that a case of abuse is here presented. The accident occurred in Scott county, and the actions were brought in Muscatine county. It is inevitable that an accident of the character of the one in question, and attended by the results such as are conceded to have followed, will provoke discussion and comment pro and con and both in print and by word of mouth. But it does not follow therefrom and of necessity that prejudice will so far permeate the citizenship of the county that, pursuing the usual methods, a fair jury cannot be made up to try the case. Certainly the belief of a few citizens who have read or heard comment unfavorable to the defendant ought not to be accepted as all-sufficient proof of the feeling prevailing in the county at large. It is true that in the Laura M. Croft Case two trials had already been had, and verdicts in large amounts returned, the first of which was set aside as excessive, and the second cut down on consent of plaintiff by the court on entering judgment. But this does not go far in proof of the fact that the citizenship of the county is so far dominated and controlled by prejudice that defendant cannot have a fair trial before a jury of the county. It must be assumed that the jurors who sat upon the former trials were in all respects qualified, and that the verdicts were predicated solely upon the view afforded by the respective trials; that the verdicts were excessive cannot be attributed, therefore, to popular prejudice from the influence of which, if it existed, the jurors were withdrawn. Counsel for appellant have brought up the record of the examination of the various veniremen taken upon the impanelment of the jury in the present case, and we are asked to consider the same as tending to show popular prejudice in the county. Manifestly we cannot do this. The case is before us for the correction of errors, and, in considering the correctness of any particular ruling, we must go to the situation as presented to the trial court, and to that alone.

2. Two of the veniremen called into the box were challenged by defendant for cause after examination, and the challenges were overruled. It is claimed that here was error. One of the men, Thomas McSwiggin, answered that he had read about the accident, the case, and the verdict on the other trials; that he had also talked with his neighbors on the subject. He also says that he then formed an opinion which would require evidence to remove. He said, however, that his opinion would have no weight if he was selected as a juror; that he would not take it with him into the jury box, and he would not be affected by it in reaching a verdict. The other man, Louis Duge, answered that, at the time of the accident, he formed an opinion from what he heard as to who was to blame therefor. “I guess I could serve as a juror, and return a verdict without reference to anything that I heard.” On cross-examination he answered: “I have slightly an opinion now. It would require some evidence to remove it.” Further he says he “guesses” he could form a verdict from the evidence without giving any weight to the account of the accident printed immediately after the occurrence thereof. In answer to a question by the court he replied that at the present moment he had no definite opinion as to which side of the pending controversy had the right of it. In our view no error is disclosed. As far as here to be considered a venireman is subject to challenge only when “it appears he has formed or expressed an unqualified opinion on the merits of the controversy, or shows such a state of mind as will preclude him from rendering a just verdict.” In the present case the answers of McSwiggin did not disclose an unqualified opinion, and this is also true as to Duge. Indeed, counsel for appellant do not contend otherwise. If subject to challenge, therefore, it was because a state of mind was disclosed such as in fairness unfitted them for service on the jury. We are not willing to agree with counsel that this conclusion is dictated by the examination of which the record makes disclosure. In this day, intelligence is demanded in the jury box, and intelligent men read the newspapers, and discuss current topics with their neighbors. It would be strange, indeed, if opinions, superficial or qualified in character, should not be formed, based upon information thus acquired. And it will not do to lay it down as a rule that intelligent men thus conditioned are unfitted for jury service. Moreover, every intelligent observer knows that, in the exceptional cases, the real disqualification can be charged more certainly to moral disregard, bottomed on interest, near or remote, or inherent personal prejudice, than to the formation of a merely superficial opinion. Stated in another way, an honest man, especially when reminded of his duty, may be expected to put aside opinion based on rumor or second-hand report, and do justice as the real facts of the case presented to him on the trial seem to demand. A dishonest man, and it is not necessary that the expression should be taken in an offensive sense, though cautioned, may not be expected to put aside his hearsay opinion, because, when formed, such opinion will in general accord--consciously or unconsciously--with personal self-interest or personal prejudice. Men of the class first above referred to should never be subject to challenge for cause unless from their own mouths they testify to their disqualification.When an examination discloses that in character a venireman belongs to the class last above referred to he should be dismissed at once. And the court is not restricted to the mere form of words in which the answers of the venireman are couched. His manner and appearance may be taken into consideration. Here, too, much must be left to the discretion of the trial court, and, as in other matters resting in discretion, its action will not be disturbed except a clear case of abuse is made to appear. Our views thus expressed find support in principle in the following authorities: Anson v. Dwight, 18 Iowa, 241;Sprague v. Atlee, 81 Iowa, 1, 46 N. W. 756;In re Goldthorp's Estate, 115 Iowa, 430, 88 N. W. 944. We are united in the opinion that the respective examinations of the veniremen in question did not show disqualification calling for their dismissal. The answers of McSwiggin were simple and straightforward, and brought him clearly within the rule of qualification. This may also be said of Duge. It is not material that, in giving his answers, the latter used the qualifying word “guess”--a word technically implying doubt. It is manifest from his answers as a whole that the form of expression used was merely a colloquialism. It was not intended to be understood in its literal or technical sense.

3. One Boos, a witness called by plaintiff, made answer that he was a married man and for several years had been the head of a family. From his answers it also appeared that his station in life was quite similar to that occupied by plaintiff. He was then given the case of a wife 34 years of age, healthy and able to do the work of her family, consisting of her husband and two children, the...