Shane v. Butte Electric Ry. Co.
| Decision Date | 13 November 1908 |
| Citation | 97 P. 958,37 Mont. 599 |
| Parties | SHANE v. BUTTE ELECTRIC RY. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Personal injury action by Guy Shane against the Butte Electric Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.
W. M Bickford and Geo. F. Shelton, for appellant.
John J McHatton, for respondent.
In 1905 the Butte Electric Railway Company owned and operated a line of street cars propelled by electricity between Columbia Gardens and Butte City. This street car line crossed the line of the Butte, Anaconda & Pacific Railway Company at Iron street and Utah avenue, in Butte. On the night of August 20, 1905, a collision occurred at this place of intersection between a street car owned and operated by the street railway company and a freight train operated by the Butte, Anaconda & Pacific Railway Company. The electric car carried a large number of passengers, some of whom were killed and many injured. The plaintiff, Guy Shane, brought this action to recover damages for injuries alleged to have been sustained by him in this collision. He made the street railway company and one Alfred Jackson, who was the motorman in charge of the street car at the time of the accident, defendants. There was not any service of process upon Jackson. The street railway company answered, and, issue being joined, the cause was tried to the court sitting with a jury. A verdict was returned in favor of the plaintiff for $8,000. The street railway company moved for a new trial, and upon a hearing of the motion the trial court ordered the plaintiff to remit $3,500 of the verdict or submit to a new trial. Within the time allowed the plaintiff filed his consent in writing to a reduction of the verdict, and a new trial was denied and a judgment rendered and entered in favor of the plaintiff for $4,500, from which judgment and an order denying it a new trial, the defendant street railway company appeals.
In selecting the jury one John Hyland was called, and, being examined on his voir dire, it developed that he had formed an unqualified opinion as to the merits of the controversy, and that he entertained a prejudice against railway companies generally. He was challenged for cause, but the challenge was overruled, and this ruling is assigned as error. The defendant street railway company exhausted its peremptory challenges, but Hyland was a member of the trial jury which tried the case. Section 6741, Rev. Code, specifies the grounds for challenges for cause, and among others enumerates: The Constitution of this state (article 3, § 23), among other things, provides: "The right of trial by jury shall be secured to all, and remain inviolate." Speaking of this guaranty, the Supreme Court of California, in Lombardi v. California Street Cable Co., 124 Cal. 311, 57 P. 66, said: ' And the same language is quoted with approval in Quill v. Southern P. Co., 140 Cal. 272, 73 P. 993. Can it be said that a juror is fair and impartial who has formed an opinion which takes evidence to remove, and who entertains a prejudice against a class of which the defendant is one? We think not. Furthermore, the statute above has prescribed the qualifications of jurors, in order to insure to litigants as nearly exact justice as our form of government will permit; and it is not within the province of this court to modify or amend the statute.
But it is suggested by counsel for respondent that it appears that the juror's opinion was based upon newspaper reports or common rumor, and that the juror stated that notwithstanding his...
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