Kansas City, M. & B.R. Co. v. Whitehead

• Decision Date: 08 April 1896
• Citation: 19 So. 705,109 Ala. 495
• Court: Alabama Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. v. WHITEHEAD.

19 So. 705

109 Ala. 495

KANSAS CITY, M. & B. R. CO. v. WHITEHEAD.

Supreme Court of Alabama

April 8, 1896

Appeal from circuit court, Marion county; H. C. Speake, Judge.

Action by J. B. Whitehead against the Kansas City, Memphis &amp Birmingham Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This suit was instituted on June 13, 1892, by the appellee, J. B Whitehead, against the appellant, the Kansas City, Memphis &amp Birmingham Railroad Company, and sought to recover damages for the alleged negligent killing, by a train of cars belonging to the defendant, of a horse, the property of the plaintiff, on October 13, 1891. The amount of damages claimed in the complaint was $75. The defendant pleaded the general issue, and two special pleas, in which he set up the defense that the cause of action was barred by the statute of limitations of six months, the amount of damages claimed not exceeding $100 The plea of the statute of limitations of six months was demurred to by the plaintiff on the grounds that said statute does not apply to proceedings in suits instituted in the circuit court, and that it is shown by said plea that the injury complained of was done within one year from the time of the institution of the suit. This demurrer was sustained, and the defendant duly excepted. On the trial of the cause, as is shown by the bill of exceptions, the defendant's counsel asked the court's permission to ask the jury the following questions: "Do any of the jury live near to, or in the neighborhood of, where the accident for which this suit is brought happened?" "Do any of the jury have a cause pending against the defendant for killing stock?" "Do any of the jury believe that the defendant should pay for all stock killed by it, whether negligent or unavoidable?" The court refused to allow the defendant to ask the jury each of these questions, and to the refusal to allow each question asked the defendant separately excepted. The plaintiff introduced evidence tending to show that his horse, of the value of $65 was killed on the track of the defendant by being run over by a train of cars belonging to the defendant; that, at the place where the horse was killed, the track of the defendant was straight, and the horse could have been seen for two miles or more, and that there were tracks for 150 or 200 yards along the roadbed of the defendant, indicating that the horse was running; and that these tracks extended up to where the horse was knocked off the track and injured. The defendant introduced no evidence. The court, at the request of the plaintiff, gave the general affirmative charge in his favor, and refused to give the several charges requested by the defendant. To the giving of the charge requested by the plaintiff, and the refusal to give the charges requested by the defendant, the defendant separately excepted. There were verdict and judgment for the plaintiff. Defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Nesmith & Nesmith and Hewitt, Walker & Porter, for appellant.

McGuire & Collier, for appellee.

BRICKELL C.J.

The rule prevailing in this state is that, before challenge, neither party has a right to interrogate a juror, to ascertain whether he is subject to challenge. Bales v. State, 63 Ala. 30. Such interrogation is a departure from the course of procedure the law appoints, and must be generally merely speculative and inquisitorial. The presiding judge will at all times, by an inquiry of each member of the panel, or of each juror proposed to be sworn, ascertain whether he has the requisite qualifications, or is subject to any of the challenges for cause; protecting the parties against the presence of incompetent jurors, or of jurors who, by their relation to the parties or to the particular cause, are incompetent or disqualified. This is more appropriate, more orderly, and more promotive of the administration of justice, which would soon degenerate into a mere fishing procedure, wearying jurors and needlessly consuming the public time. The circuit court very properly refused to permit the interrogation of the jurors proposed by the appellant.

The constitution confers on circuit courts "original jurisdiction in all matters civil and criminal, within the state, not otherwise excepted in the constitution; but in civil cases only when the matter or sum in controversy exceeds fifty dollars." Const, art. 6, § 5. These courts have been a part of our judicial system since and prior to the organization of the state government, and, in all of our constitutions, the grand to them of original jurisdiction has been expressed in the same words now employed in the constitution. The constitution also provides for the election of justices of the peace, and declares that they "shall have jurisdiction in all civil cases wherein the amount in controversy does not exceeds one hundred dollars, except in cases of libel, slander, assault and battery, and ejectment." Const. art. 6, § 26. It is a settled rule of construction that the provisions of the constitution conferring civil jurisdiction on justices of the peace are not self-executing; that it requires legislation to put them in force and give them effect. Pearce v. Pope, 42 Ala. 319; Taylor v. Woods, 52 Ala. 474; Carter v. Alford, 64 Ala. 236. Code, § 839, subd. 2, declares that justices have original jurisdiction "of all actions founded on any wrong or injury, where the damages...