Privitt v. St. Louis-San Francisco Ry. Co.

• Decision Date: 07 December 1927
• Docket Number: No. 25968.,25968.
• Citation: 300 S.W. 726
• Parties: PRIVITT v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Supreme Court

300 S.W. 726

PRIVITT v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 25968.

Supreme Court of Missouri, Division No. 1.

December 7, 1927.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by Ray Privitt against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller, of St. Louis, Grayston & Grayston, of Joplin, and Mann & Mann, of Springfield, for appellant.

W. N. Andrews, Norman A. Cox, and Hugh Dabbs, all of Joplin, for respondent.

LINDSAY, C.

The plaintiff was 17 years old at the time be received the injury for which he sued. At about 8:30 o'clock of the morning of August 29, 1923, he sat down upon the beams of a cattle guard, on defendant's railway line, near the eastern boundary of the town of Carl Junction, and, leaning back against the wing of the cattle guard, fell asleep. While so asleep, and while his left leg was extended over the adjacent rail, the wheels of an engine, pulling one of defendant's freight trains, ran over his leg, necessitating amputation at about 6 inches below the knee. He had a verdict and judgment for $5,000, and, because the constitutional validity of a statute was challenged, the appeal was allowed to this court.

Upon the voir dire examination, the court discharged a member of the panel, it being developed that at the time said juror was an employee of the Acme Mining Company and of a Mr. Buchanan, in the operation of a mine in Jasper county, and also, that Mr. Grayston, one of the attorneys for defendant, was attorney for said mining company and said Buchanan. The discharge was asked and granted under the provisions of section 6655, R. S. 1919. That section reads as follows:

"If upon the voir dire it appears that any juror is in the employ of any person, firm, or corporation who has within the six months last past employed, or who within such time has had in his or its employ, any attorney on either side of the case being tried, the opposing party shall have the right to challenge such juror for cause."

Defendant excepted to the action of the court, upon the ground that the juror was not disqualified under the statute, and also that the statute violated the provisions of article 5, and the first section of article 14, of the Amendments to the Constitution of the United States, and also sections 28 and 30 of article 2 of the Constitution of Missouri. There are only two assignments of error made—the one that the court erred in discharging the juror; the other, the overruling of defendant's demurrer offered at the close of the evidence. After this appeal was allowed, the validity of section 6655 was challenged, and sustained, in another case (Hicks v. Simonsen, 307 Mo. 307, 270 S. W. 318), decided in Division 2, wherein a juror was discharged by the trial court under the like conditions and for the same reason. Since the constitutional question was raised and the appeal was taken in this case before the validity of the statute was settled in the case mentioned, the appeal is properly in this court, and it will retain jurisdiction. Boling v. Railroad, 189 Mo. loc. cit. 230, 88 S. W. 35; Roenfeldt v. Railroad, 180 Mo. loc. cit. 563, 79 S. W. 706. Moreover, in the Hicks Case the particular objection urged was that the statute in question was a special law and therefore violative of section 53 of article 4 of the Constitution of Missouri.

In that case section 6655 and other related sections, a part of article 2 of chapter 53, R. S. 1919, concerning juries in counties having 60,000 but not more than 200,000 inhabitants, was considered. The act was held to be a general law, and applicable to all counties then or thereafter coming within the class prescribed, and it was further held to be a proper exercise of the police power, directed to the purpose of providing juries entirely disinterested and free from the influence of attorneys on either side of causes to be tried. A reconsideration of the ruling is asked, and it is suggested that section 6655 denies to the party concerned due process of law, and the equal protection of the laws, deprives him of his property without due process of law, and denies the right to a fair and impartial trial by a jury. No ruling of this, or of any other court is cited, as sustaining that contention. In the absence of citation of any such authority, and being aware of none, and also in view of the holding in Hicks v. Simonsen that the statute in question is a general and not a special law, and a proper exercise of legislative power, adapted to the end in view, no reason is perceived for holding in this case that the trial court denied to the defendant due process of law, or the equal protection of the taws; or, that defendant was deprived of his property without due process of law, or of the right to a fair and impartial jury. The right to a fair and impartial jury is guaranteed by the Constitution; but the means and method of enjoyment of that right are left to the reasonable exercise of legislative discretion. To prescribe whatever will tend to procure the impartiality of jurors in the trial of cases, is not only within the competency of the Legislature, but is one of its highest duties. State ex rel. Slover, 134 Mo. 607, 36 S. W. 50; State v. Welsor, 117 Mo. 570, 21 S. W. 443; Hayes v. Missouri, 120 U. S. 68, 7 S. Ct. 350, 30 L. Ed. 578. Accordingly, this assignment is ruled against defendant.

The plaintiff's claim of right to recover Es founded upon the humanitarian rule, and the remaining question is whether he made a submissible case under that rule.

The place was at the crossing of defendant's railway and a public highway called Grimes street, on or near the east limits of Carl Junction. This street runs north and south. The railway at and near the crossing runs somewhat from northeast to the southwest. The train in question was moving westward. There was a cattle guard on each side of the street, which was fenced on its east and west lines, and the right of way of defendant on both sides of the street was also fenced. The plaintiff at the time he was injured was on the cattle guard west of the street, and leaning on the wing on the south side of the rails. The cattle guard was of the usual character of construction, with a triangular wing on each side. The corporate limits of Carl Junction, extending eastward beyond Grimes street, take in what is known as Gulfton, a station on defendant's line, where there is a depot, and two or three other buildings. This is about one-half mile eastward from the Grimes street crossing. Defendant's line crosses the Kansas City Southern Railway line at Gulfton. From this crossing defendant's track runs straight, or is, as it is described, an open track westerly to and beyond Grimes street. The track from Gulfton to Grimes street is up grade, and the crest of the grade is at Grimes street. Thence the track runs down grade westward. ly to the Carl Junction station. Carl Junction had a population of between 1,300 and 1,500 inhabitants. The train which injured the plaintiff, a west-bound train, consisted of an engine, and 22 freight cars. On the north side of defendant's track, east of Grimes street, and not far distant from the crossing, is a cemetery; and there was in this angle between Grimes street and defendant's track the residence of the Akin family, some of whose members were called as witnesses by the plaintiff. One of them, Raymond Akin, a boy of 16 years, testified that from the porch of this residence he saw the plaintiff leaning back against the cattle guard before the train came. He fixed the distance of the house from the crossing as being about 300 yards north of the railway, and about the same distance east of Grimes street. His sister, who also testified, said the house was about 200 feet north of the railway, and about 300 feet east of Grimes street. That street was shown to be 50 feet in width, and the fence on each side joined up with the respective wings of the cattle guards. The fence and cattle guard on the west side especially fix the plaintiff's position. They were shown to have been located where they were for a period of 30 years or more.

There is much argument in the briefs upon the question of what the petition alleged, as to the location of the point where plaintiff was when he was injured, and whether he was within the line of Grimes street, and whether and to what extent people were accustomed to pass along the defendant's track, and along and over the west cattle guard, and the question of the consequent duty of defendant's employees to watch for and to expect persons to be on or about the place where the plaintiff was. In the course of their discussion in the briefs, counsel for defendant suggest that the only reference made in the petition to the public highway is that plaintiff "was on and near appellant's said track at the west boundary of said public highway, where the same crosses appellant's track as aforesaid," and suggest also that there is no evidence showing that the fence on the west side of the highway was on the right of way line of the highway. However, the petition describes the place of crossing, and alleges a crossing by defendant's line, at grade, of the public highway known as Grimes street in the city of Carl Junction, and alleges "that within and on the west boundary of said public highway at said crossing, defendant has and maintains on its said track, a cattle guard." It then alleges that the highway is one much used, and the crossing one much used by the traveling public, and follows that by alleging that defendant's track from Gulfton station to Carl Junction station, and "over said public crossing and cattle guard, daily, with full knowledge of defendant and its employees, had been used and treated as a thoroughfare by large numbers of persons, not employees of defendant, with the same freedom as if said railroad track had constituted a public highway of said city; and...