Kansas City M. & B.R. Co. v. Ferguson

CourtAlabama Supreme Court
Writing for the CourtDOWDELL, J.
Citation143 Ala. 512,39 So. 348
Decision Date18 May 1905
PartiesKANSAS CITY, M. & B. R. CO. v. FERGUSON.

39 So. 348

143 Ala. 512

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

Supreme Court of Alabama

May 18, 1905


Appeal from Law and Equity Court, Walker County; Peyton Norvell, Judge.

"To be officially reported."

Action by Sarah Ann Ferguson, as administratrix of the estate of John A. Wilson, deceased, against the Kansas City, Memphis & Birmingham Railroad Company, to recover for the negligent killing of her intestate. From a judgment in favor of plaintiff for $3,106, defendant appeals. Reversed.

Walker, Tillman, Campbell & Morrow, for appellant.

DOWDELL, J.

The first question insisted on in argument by counsel for appellant is one that was raised in the court below in selecting the jury for the trial of the case. This question cannot be better stated here than by copying the statement as contained in the bill of exceptions, to wit: "Before the trial of this cause began, the court called jury No. 2 into the box, and ascertained by inquiry of the jurors composing said jury No. 2 that none of them were interested in the defendant or related to the plaintiff or to counsel of either party to the cause. After this was done the defendant demanded a struck jury. The court then ordered the sheriff to serve upon each party a list of 24 jurors in attendance upon the court, and while these lists were being prepared and before such lists had been served upon either party the defendant's counsel then asked the court to ascertain by inquiry of the jurors composing jury No. 1, the only other jury in attendance upon the court, whether any of them were interested in the defendant, or related to the plaintiff, or related to any of the counsel of either party to the cause. The court declined to make such inquiry, and the defendant excepted to the action of the court in declining to inquire of said jurors composing said jury No. 1 as to whether any of them were related to the plaintiff, or to any of the counsel in the cause, and whether any of them were interested in the defendant." Section 2656 of the Code of 1896, which provides for a struck jury, reads as follows: "In all actions triable by jury, either party may demand a struck jury, and must thereupon be furnished by the sheriff with a list of twenty-four jurors in attendance upon the court, from which a jury must be obtained [39 So. 349] by the parties or their attorneys alternately striking one from the list until twelve are stricken off, the party demanding the jury commencing; and the jury thus obtained must not be challenged for any cause except bias or interest as to the particular case."

No objection was made to the defendant's demand for a struck jury by the plaintiff on the ground that it was not made in time, or for any other reason. The question presented must therefore be considered without reference to the timeliness of the demand. The simple question, then, is, did the court err in its refusal to make the inquiry as requested by the defendant? The inquiry which was requested by the defendant was limited to the ascertainment of whether any member of...

To continue reading

Request your trial
4 practice notes
  • Brown v. Mobile Electric Co., 1 Div. 214.
    • United States
    • Supreme Court of Alabama
    • December 22, 1921
    ...77 Ala. 344; L. & N. R. R. Co. v. Marbury, 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Kansas City R. Co. v. Ferguson, 143 Ala. 513, 39 So. 348; L. & N. R. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001. Was the giving of that charge error in this case? The plaintiff by its evidence has made o......
  • Louis Pizitz Dry Goods Co. v. Cusimano, 6 Div. 146.
    • United States
    • Supreme Court of Alabama
    • October 27, 1921
    ...in the trial, and would be subject to challenge for cause. Sections 4635 and 7276, Code 1907; Kas. City, M. & B. R. R. Co. v. Ferguson, 143 Ala. 512, 39 So. 348. In Citizens' Co. v. Lee, 182 Ala. 561, 62 So. 199, and in Beatty v. Palmer, 196 Ala. 67, 71 So. 422, this court held it was not i......
  • City of Birmingham v. Lane, 6 Div. 821.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...v. Mayer Bros., 117 Ala. 253, 259, 23 So. 3; Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687; K. C., etc., Co. v. Ferguson, Adm'r, 143 Ala. 512, 39 So. 348; Barden v. State, 145 Ala. 1, 9, 40 So. 948. It is further established that, if the injured party had notice of the disqualificatio......
  • Garvin v. Robertson, 6 Div. 917
    • United States
    • Supreme Court of Alabama
    • August 10, 1972
    ...and competent jurors. The parties were entitled to strike from a list of 24 competent and impartial jurors. K.C.M. & B.R. Co. v. Ferguson, 143 Ala. 512, 39 So. 348, 349; Tit. 30, § 54, supra. Juror Naramore, having served on the panel when a mistrial was priviously declared, was not a compe......
4 cases
  • Brown v. Mobile Electric Co., 1 Div. 214.
    • United States
    • Supreme Court of Alabama
    • December 22, 1921
    ...77 Ala. 344; L. & N. R. R. Co. v. Marbury, 125 Ala. 237, 28 So. 438, 50 L. R. A. 620; Kansas City R. Co. v. Ferguson, 143 Ala. 513, 39 So. 348; L. & N. R. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001. Was the giving of that charge error in this case? The plaintiff by its evidence has made o......
  • Louis Pizitz Dry Goods Co. v. Cusimano, 6 Div. 146.
    • United States
    • Supreme Court of Alabama
    • October 27, 1921
    ...in the trial, and would be subject to challenge for cause. Sections 4635 and 7276, Code 1907; Kas. City, M. & B. R. R. Co. v. Ferguson, 143 Ala. 512, 39 So. 348. In Citizens' Co. v. Lee, 182 Ala. 561, 62 So. 199, and in Beatty v. Palmer, 196 Ala. 67, 71 So. 422, this court held it was not i......
  • City of Birmingham v. Lane, 6 Div. 821.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...v. Mayer Bros., 117 Ala. 253, 259, 23 So. 3; Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687; K. C., etc., Co. v. Ferguson, Adm'r, 143 Ala. 512, 39 So. 348; Barden v. State, 145 Ala. 1, 9, 40 So. 948. It is further established that, if the injured party had notice of the disqualificatio......
  • Garvin v. Robertson, 6 Div. 917
    • United States
    • Supreme Court of Alabama
    • August 10, 1972
    ...and competent jurors. The parties were entitled to strike from a list of 24 competent and impartial jurors. K.C.M. & B.R. Co. v. Ferguson, 143 Ala. 512, 39 So. 348, 349; Tit. 30, § 54, supra. Juror Naramore, having served on the panel when a mistrial was priviously declared, was not a compe......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT