O'Donnell v. United Rys. Co. of St. Louis

• Decision Date: 03 January 1911
• Citation: 133 S.W. 1165,152 Mo. App. 606
• Parties: O'DONNELL v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

133 S.W. 1165

152 Mo. A. 606

O'DONNELL v. UNITED RYS. CO. OF ST. LOUIS.

Springfield Court of Appeals. Missouri.

January 3, 1911.

Rehearing Denied February 6, 1911.

1. JURY (§ 53)—QUALIFICATION OF JURORS— SERVICE WITHIN YEAR.

Rev. St. 1899, § 6547 (Ann. St. 1906, p. 3274), requires courts in cities having a population of over 100,000 to excuse from jury service every person who has served on any jury within 12 months next preceding, if challenged for that cause. Held, that the statute only disqualified jurors who had served within 12 months from the date the juror began service on the regular panel, and not within 12 months next preceding the date of the trial.

2. APPEAL AND ERROR (§ 701)—RECORD—REVIEW OF INSTRUCTIONS.

The appellate court cannot review alleged errors in instructions where the evidence is not in the record.

3. NEW TRIAL (§ 11) — GROUNDS — VERDICT AGAINST EVIDENCE—SECOND NEW TRIAL.

Under Rev. St. 1909, § 2023, providing that only one new trial shall be allowed each party, except where the jury has erred in a matter of law, or has been guilty of misbehavior, a second verdict cannot be set aside and a second new trial granted because the verdict is against the weight of the evidence.

4. DAMAGES (§ 210)—INSTRUCTIONS—AMOUNT RECOVERABLE.

Where the petition in an action for personal injuries alleged that plaintiff had incurred expenses to the amount of $169 for hospital and medical expenses, and that "for a long time to come he will incur expenses for medical attention," the instruction need not limit the amount of recovery to the amount of the itemized expenditures.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Thomas O'Donnell against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was instituted by Thomas O'Donnell against the United Railways Company of St. Louis in the circuit court of the city of St. Louis on May 15, 1908, and was an action for damages for personal injuries. Two trials nisi have been had. At the first trial the plaintiff obtained a verdict for $600; which, on motion of the defendant, was set aside as against the weight of the evidence and a new trial granted. The plaintiff obtained judgment on the second trial for $1,500, from which the defendant appealed to the St. Louis Court of Appeals. The cause was thereupon transferred to this court, and the appellant filed its abstract and briefs in this court, as did the respondent, and before the argument the parties by their respective attorneys expressly waived the question of this court's jurisdiction to hear and determine the cause. The amended petition alleges that on or about the 11th day of June, 1907, plaintiff was driving a mule and wagon eastward on Olive street, in the city of St. Louis, in and near No. 4002, on said street; that directly in front of him was an east-bound car of the defendant; that said car stopped, and plaintiff had to drive out from behind said car to the north, the south side of said street being blockaded; that in so doing he was driving in and over the west-bound track of the defendant and was in such a position that he could not turn to the right on account of another car of the defendant standing on the south and east-bound track of the defendant, nor could he turn to the left on account of a rapidly approaching automobile coming in the opposite direction on the north side of said street; that defendant, with a full and open view of the position and condition of plaintiff as aforesaid, negligently and carelessly ran one of its west-bound cars into and collided with the mule and wagon which plaintiff was driving, and threw plaintiff from the wagon with great force and violence injuring him in the manner hereafter set out. As a specific charge of negligence, the plaintiff in his petition then pleaded the violation of the vigilant watch ordinance of the city of St. Louis. It is then alleged that, by reason of the acts of negligence of the defendant, the plaintiff received certain enumerated injuries about his face and head causing him to suffer great pain in body and mind; that by reason thereof plaintiff became afflicted with fainting spells, weakness, and dizziness, which would be permanent; that on account of said injuries he had been and would be for some time unable to follow his regular occupation of teamster and driver; and that throughout life he would be incapacitated in the following of his regular occupation or the doing of any kind of work. The amended petition then concludes as follows: "That on account of said injuries he has incurred great expense for hospital fees and medical attention, to wit, the sum of $169, and for a long time to come he will incur expense for medical attention. Wherefore, on account of the damages aforesaid, plaintiff prays judgment against the defendant in the sum of $4,500 and his costs herein." For its answer, the defendant pleaded a general denial and a plea that "whatever injuries, if any, plaintiff sustained, were caused by his own carelessness and negligence in driving in front of and in close proximity to an approaching car." The reply was a general denial.

During the examination of the jury on their voir dire, several of the jurors stated that they had served on a jury in the same court on the Monday next previous, whereupon defendant challenged each of said jurors on the ground that he had served on a jury within the past 12 months. The challenge was overruled, and defendant excepted.

The plaintiff testified, in substance, as follows: He was driving a one-horse (mule) wagon east on Olive street in the south or east-bound track behind an east-bound car. This car came to a stop at about 4000 Olive street, and he waited behind it a few minutes, then leaned out of the wagon, and looked down the west-bound track. Seeing no car nearer than Vandeventer avenue, he turned into the west-bound track, and drove east 30 or 40 feet in the west-bound track until he was about even with the front of the east-bound car. Two automobiles prevented him from turning into the street north of the car tracks, and before he had an opportunity to turn to the south in front of the east-bound car his mule was struck by a west-bound car. He stated that he had always been a teamster; that he did not drink at the time and never had. At the time of the trial he was 43 years of age. On cross-examination he stated that before he could drive 35 or 40 feet around the east-bound car the west-bound car ran 800 feet and struck him. The west-bound car was running about 20 miles an hour.

J. E. Thacker, on behalf of plaintiff, testified, in substance, that at the time of the accident he was employed by the United Railways Company and was operating the car which struck plaintiff's mule. At the time of the trial, he was employed by the Pullman Car Company. He was operating the street car at about 8 or 10 miles an hour before striking the mule. He could not state the exact number of feet the car could have been stopped in, but knew that it could have been stopped within a block. Upon cross-examination he testified that the mule was about 15 feet from him when he first saw it, and was just coming from behind the east-bound car. Only the head of the mule was over the west-bound track, and when it was struck it fell back on the east-bound track.

The two instructions which were given at plaintiff's request are the only ones of which appellant complains, and they are copied in the opinion.

Boyle & Priest, T. M. Pierce, and Paul U. Farley, for appellant. McShane & Goodwin, for respondent.

NIXON, P. J. (after stating the facts as above).

1. The first assignment of error made by the appellant is that the court erred in overruling appellant's challenges for cause of jurors on their voir dire for the reason that they had served on a jury within 12 months next preceding the date of the trial. The question involved in this assignment of error has received an authoritative determination by this court in the recent case of Paula F. Blyston-Spencer, Respondent, v. United Railways Company of St. Louis, Appellant (decided at this term) 132 S. W. 1175. On the review of the authorities and the statutes, we held that the words of section 6547, Rev. St. 1899 (Ann. St. 1906, p. 3274): "And it shall be the duty of every court of record in said city to excuse from service as a juror every person who, being examined on the voir dire, shall appear to the court to be a person whose name ought not to have been placed upon the jury list under the provisions of this article, or who has served on any jury in any court in this state within twelve months next preceding, if challenged for that cause, by either party of the suit; and the court may excuse such person without challenge by either party"— mean within 12 months from the date the juror began service as a juror on the regular panel, and not 12 months next preceding the date of the trial. Reference is therefore made to the opinion in that case for authorities and reasons on which the conclusion is based.

2. Appellant contends that instruction No. 1 is erroneous in that it fails to define the degree of care required of the appellant's employés in handling the cars under the circumstances. This instruction is as follows: "If the jury find and believe from the evidence that on June 11, 1907, plaintiff was driving a mule and wagon eastward on the south track of defendant's railroad on Olive street and had approached a point known as 4002 Olive street, that directly in front of said mule and wagon there was an east-bound car of the defendant on said track that had stopped; and if you believe and find from the evidence that plaintiff drove around said east-bound car and upon the west-bound track of defendant; and if you believe and find from the evidence that at said time there was a west-bound car on the north track of defendant approaching in an opposite direction...