Eckert v. St. Louis Transfer Co.

• Decision Date: 10 April 1876
• Citation: 2 Mo.App. 36
• Parties: JACOB ECKERT, Respondent, v. ST. LOUIS TRANSFER COMPANY, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 36

JACOB ECKERT, Respondent,

v.ST. LOUIS TRANSFER COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 10, 1876.

1. Where a juror is objected to as prejudiced, and qualifies himself under the statute and is accepted by the judge presiding on the trial, this court will not interfere.

2. Where a full panel of eighteen jurors was called, where only one juror is challenged by one of the parties, even though the court improperly refused a challenge for cause, no prejudice can arise to the party challenging, and the appellate court will not interfere.

3. The question in cases of liability of the master for the acts of the servant is not, whether the act of the servant is negligent or willful, but whether it is done whilst engaged in the master's business, and within the scope of the servant's employment.

4. Damages which give merely a full, round compensation for the injury done are not punitive.

5. Negligence of the plaintiff which does not directly contribute to the injury will not relieve the defendant from the consequence of negligence on his part which is the direct cause of the injury.

APPEAL from St. Louis Circuit Court.

Affirmed.

S. M. Breckinridge, for appellant, cited: Hill on New Tr. (2d ed.) 184, sec. 44; Nevins v. State, 13 Smed. & M., 500, 509; Colton v. State, 31 Miss. 504; Chicago & Alton R. R. Co. v. Adler, 56 Ill. 344; Hudson v. St. Louis, Kansas City & Northern Ry. Co., 53 Mo. 255; Garretzen v. Duenckel, 50 Mo. 104; U. S. Bank v. Daniel, 12 Pet. 32; Patapasco, 12 Wall. 451; Rio Grande, 19 Wall. 178: Watson v. Vaughn, 23 Cal. 61; Skillman v. Lackland, 23 Cal. 198; Smith v. Smith, 15 Vt. 620; Knapp v. Banks, 2 How. 73; Walker v. United States, 4 Wall. 163.

F. & E. L. Gottschalk, for respondent, cited: Wag. Stat. 800, secs. 21, 22, 25; Wag. Stat. (1872) 1067, sec. 33; State v. Holme, 54 Mo. 158, 159; State v. Hays, 23 Mo. 287; Hill on New Tr. (2d ed.) 155, 156, secs. 4, 7; 2 Gra. & Wat. on New Tr. 468; Whittacker v. Carter, 4 Ired. 461; State v. Schaeffler, 3 Wis. 823; State v. Baldwin, 12 Mo. 223; State v. Scanlan, 58 Mo. 204; West v. Forrest, 22 Mo. 344; Freeman v. The People, 4 Denio, 31; Stewart v. State, 13 Ark. 742; McGowan v. State, 9 Yerg. 193; People v. Knickerbocker, 1 Park. Cr. 304; McComas v. Covenant Mutual Life Ins. Co., 56 Mo. 573 (see page 576); Hudson v. St. Louis, Kansas City & Northern Ry. Co., 53 Mo. 525, 536; State v. Davis, 29 Mo. 391, 397; State v. Rosel, 32 Mo. 346; State v. Miller, Southern Law Rev. (1874) 572; State v. Breen, 59 Mo. 413, 417; State v. Klinger, 46 Mo. 226; Coacker v. Chicago & Northwestern R. R. Co., 36 Wis. 657; Perkins v. Missouri, Kansas & Texas Ry. Co., 50 Mo. 202; Gillet v. Missouri Valley R. R. Co., 55 Mo. 315; Maleck v. R. R. Co., 57 Mo. 17; Goddard v. R. R. Co., 10 Am. Law Reg. 33; Harrison v. Stowe, 57 Mo. 93; Norton v. Ittner, 56 Mo. 351, 352; Wyatt v. City R. R. Co., 55 Mo. 485; Karle v. Kansas City, St. Jo. & Council Bluffs R. R. Co., 55 Mo. 476; Vaughn v. Searle, 30 Mo. 600; Liddy v. St. Louis R. R. Co., 40 Mo. 506; New Orleans R. R. Co. v. Allbritain, 38 Miss. 242; 1 Redf. on Rys. 532, 534, secs. 2-4; Horne v. Newmarch, 12 Allen, 49.

BAKEWELL, J., delivered the opinion of the court.

This is a suit for damages for an injury caused to the plaintiff by the careless driving of one Eaton, an employee of defendant, while driving one of defendant's omnibuses, in the regular course of his employment.

The answer denies all the material allegations of plaintiff except the incorporation of defendant, and that its business was that of common carrier. It sets up, as affirmative matter of defense, that any injury done to plaintiff was caused by his own negligence, which allegation is denied in the replication.

No evidence was introduced by the defense. The testimony of the witnesses for plaintiff is quite accordant, and leaves no doubt as to the character of the transaction.

It appears that, on June 20, 1870, some delegates of musical societies in St. Louis, to the number of about 100, were returning from a festival at Cincinnati. At about ten o'clock at night, about fifty of their friends crossed the river by the ferry, to greet them on their return. These men were all together on the boat; most of them went on the main deck, the upper deck being somewhat crowded. The passengers returning from Cincinnati had, all of them, omnibus tickets; but few or none of them were in the omnibuses, as they preferred to be on deck, to talk to their friends. The omnibus driven by Eaton was empty. His omnibus and two others, and a baggage wagon, were the only vehicles on the ferry-boat. There was a crowd of fifty or 100 persons on the levee, who had come down to greet the returning party, but had not crossed the river. When the ferryboat touched the shore, plaintiff and others went on board. Most of the crowd, amongst others the plaintiff, came off the boat by the lower bridge or gangway, over which carriages pass, instead of by the stair-way, built expressly for foot-passengers, from the upper deck. The omnibus driven by Eaton had four horses. It was the first to leave the boat. He drove right into and among the crowd on the gangway and on the levee. When he reached the levee he took a slanting direction, owing, probably, to the steepness of the ascent, and, after driving over plaintiff and another man, and upsetting some, and compelling others on the bridge to jump into the river, he drove off rapidly to the stable, and was arrested there the next day, having attempted disguise by shaving off his beard.

The circumstances immediately attending the injury complained of were as follows: As the driver came on to the crowd passing off the gangway, many shouted to him to stop--that he would kill people. One witness seized a horse of his team by the head-gear, whilst on the gangway, to stop the omnibus; whereupon the driver rose in his box, struck witness and his horses with his whip, so that witness lost his balance and fell. As he struck, the driver shouted, “God damn you, let go that horse!” He was again shouted to to stop, when he drove up the bank as fast as he could, shouting, “Get out of my way. I don't care if I kill a hundred of you.” Plaintiff was on the levee, in the crowd, and immediately in front of the exit from the ferry for foot-passengers, when the horses struck him before he could escape, threw him down, tramped on his leg and ankle, and a wheel of the omnibus passed over his thigh, not breaking the bone, but sliding along the bone of the leg, so as to draw down the muscular tissue from the thigh to the knee. He suffered excruciating pain, was for six weeks confined to his bed, under care of a physician, was more or less incapacitated for his business (that of a shoemaker) for many months, and at the date of the trial, nearly four years after the occurrence, he was still suffering from rheumatic pains, a consequence of the injury. His general health was impaired, and he was not able to work continuously, as before the injury. Before the accident he could earn from $5 to $7 a day; since that time he could not average over $7 a week. In bad weather he can hardly use his legs, and suffers very much; and this condition is likely to be permanent. It was fifteen weeks after the injury before plaintiff was able to work at all, and during the winter he was totally unable to work. His business was destroyed and he had to close his shop. The second winter after the occurrence he could work a little, but had to close up every two or three weeks. In summer, when he can work, there is hardly anything to do in his trade; and in winter, when the shoemaking trade is brisk, his suffering will not allow him to get about to seek it. The injuries were mainly to the ankle of one leg, from the horses' hoofs, and to the thigh of the other, from the wheel.

The instructions asked and refused will be set out, so far as is necessary, in the course of this opinion.

The jury found a verdict for plaintiff, and assessed his damages at $2,500. Motions for new trial and in arrest having been overruled, the case is brought to this court by appeal.

1. The first point insisted upon by defendant, as ground for reversal, is the action of the trial court in refusing to allow defendant to challenge, for cause, a juror named Willich.

A full panel of eighteen was called, and sworn to answer questions. Willich said he had heard of the occurrence, at the time, in connection with the injury then done by the same driver to a man named Gericke; that he was a newspaper reporter, had examined into the facts, formed an opinion, and written and published a statement of the case of Gericke. He had no present recollection of the facts. What he might know of the facts from hearsay would not, the witness said, influence his opinion. The court considered the juror competent, and defendant challenged him peremptorily, and challenged no other person on the panel. Exceptions were duly saved to the action of the court.

The first question that arises is, was Willich a competent juror?

The law provides (Wag. Stat. 800, sec. 22) that no person is competent as a juror “who has formed or expressed an opinion concerning the matter, or any material fact in controversy, which may influence his judgment.”

The facts in the Gericke case were unquestionably material facts in the case at bar. As to these facts, the juror had formed and expressed an opinion at a period nearly four years before the date of the trial at which he was examined as a juror. He had forgotten the facts of the case. This is not important, as there can be no doubt that the facts as formerly learned by him, and also the opinion he had formed and expressed, would return to his mind, by association of ideas, during the trial, however completely forgotten at the time. This is a psychological fact as to which there can be no reasonable doubt. But the juror swore that his judgment would not be influenced by his former knowledge. This is the...