Southern Pac. Co. v. Rauh

• Citation: 49 F. 696
• Parties: SOUTHERN PAC. CO. v. RAUH.
• Decision Date: 07 March 1892
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

49 F. 696

SOUTHERN PAC. CO. v. RAUH.

United States Court of Appeals, Ninth Circuit.

March 7, 1892

W. C Belcher, for plaintiff in error.

Doolittle Pritchard, Stevens & Grosscup and Cox, Teal & Minor, for defendant in error.

Before HANFORD, HAWLEY, and MORROW, District Judges.

MORROW District Judge.

This was an action by John B. Rauh, the plaintiff in the court below, (the defendant in error here,) against the Southern Pacific Company, to recover damages for personal injuries received by him while traveling as a passenger on a train belonging to the company between Portland, Or., and Albany in that state. While the train was in motion, a bridge over which it was passing gave way. The bridge was at a point on the road known as 'Lake Labish,' in Oregon. The plaintiff, at the time of the disaster, was sitting in a car which became involved in the wreck, and in falling and colliding with other cars raised the plaintiff from his seat and immediately threw him back and against the side of the car with such force that he was bruised on the side of his head, and injured in his side and back. The case was tried before a jury, and the plaintiff had a verdict and judgment for $10,000 and costs. The company sued out this writ of error. For the reversal of the judgment errors of the court are assigned relating to the impaneling of the jury, the admission of evidence, and the verdict of the jury.

1. The Examination of Jurors. In the selection of the jury 23 persons were called and examined as to their qualifications to sit as jurors in the case. Plaintiff and defendant were each entitled to three peremptory challenges. Two of the persons called were challenged peremptorily by the plaintiff, and three by the defendant. Three were challenged by the plaintiff for cause, and, the challenges being sustained by the court, the defendant excepted. Two were challenged for cause, but by whom is not disclosed by the record. The challenges were, however, sustained without exception. One juror was excused by the court on account of bodily infirmity. To the remaining 12 persons who were accepted and finally sworn as jurors to try the case, the defendant interposed two challenges for cause, which were disallowed, and defendant excepted. To three others defendant propounded certain questions, which the court stated the jurors need not answer, the defendant excepting to the rulings of the court in that behalf. The same proceedings occurred in the examination of another juror, but the ruling of the court is not assigned as error, and will therefore be considered as waived. The other six jurors were examined and accepted without objection. Section 800 of the Revised Statutes of the United States provides that jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications as jurors of the highest courts of law such state at the time when such jurors for service in the courts of the United States are summoned. We must therefore look to the law of the state of Oregon to determine the qualifications of the jurors in this case. The Code of Civil Procedure of that state, regulating the method of forming juries, provides as follows:

'Sec. 183. A challenge for cause is an objection to a juror, and may be either (1) general; that the juror is disqualified from serving in any action; or (2) particular; that he is disqualified from serving in the action on trial. * * * '

'Sec. 185. Particular causes of challenge are of two kinds: * * * (2) For the existence of a state of mind on the part of the juror, in reference to the action, or to either party, which satisfies the trier, in the exercise of a sound discretion, that he cannot try the issue impartially, and without prejudice to the substantial rights of the party challenging, and which is known in this Code as 'actual bias.' * * * '

'Sec. 187. A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section 185. But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon the merits of the cause from what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied from all the circumstances that the juror cannot disregard such opinion, and try the issue impartially.'

'Sec. 192. The challenge may be excepted to by the adverse party for insufficiency, and, if so, the court shall determine the sufficiency thereof, assuming the facts alleged therein to be true. The challenge may be denied by the adverse party, and, if so, the court shall try the issue and determine the law and the fact.

'Sec. 193. Upon the trial of a challenge the rules of evidence applicable to testimony offered upon the trial of an ordinary issue of fact shall govern. The juror challenged, or any other person, otherwise competent, may be examined as a witness by either party. If a challenge be determined to be sufficient, or found to be true, as the case may be, it shall be allowed, and the juror to whom it was taken excluded; but, if determined or found otherwise, it shall be disallowed.'

'Sec. 230. An exception is an objection at the trial to a decision upon matter of law, whether such trial be by jury or court, and whether the decision be made during the formation of a jury or in the admission of evidence, or in the charge to the jury, or at any other time from the calling of the action for trial to be rendering of the verdict or decision. But no exception shall be regarded on a motion for a new trial, or on an appeal, unless the exception be material, and affect the substantial rights of the parties.

'Sec. 231. The point of the exception shall be particularly stated. * * * '

Eight of the errors assigned relate to the formation of the jury under the provisions of the Code just cited. Three of these have reference to the examination and qualifications of three persons,-- Craybill, O'Connor, and Holman,-- who were called and examined, but not accepted as jurors; and the other five have reference to the examination and qualifications of five Persons,-- griffin, Bacon, Cimino, Foster, and Richardson,-- who were called and examined and accepted as jurors to try the case.

The examination of Persons who were not Accepted as Jurors. We will first consider the exceptions taken in the examination of those persons who were excluded from the jury. The second person called to the jury- box was a Mr. Craybill, who, being examined on his voir dire as to his qualifications to sit as a juror in the case, was asked by counsel for defendant, 'among other questions,' the following:

'Question. Have you read or heard or talked about the accident that occurred at Lake Labish? Answer. I have. Q. Have you conversed with any one who claimed to have been at the wreck and examined it, or stated anything about the facts and circumstances connected with it? A. I believe I had a short talk with Mr. Faul, one of the railroad commissioners, after he made the examination. I am not positive whether it was with him or with his partner; one or the other. Q. Did the party who talked with you claim to state to you what was the cause of the wreck as he understood it? A. No, I do not think he did. The talk was the situation of the wreck after it occurred. Q. Now, from what you read in the newspaper, and this conversation or any other conversation you might have had or heard, have you formed or expressed at any time an opinion as to the cause of this wreck, or the liability of the railroad company for it? A. I do not know that I ever expressed an opinion; possibly I have. But it is quite natural for me, and, I suppose any one else, to form an opinion or draw some conclusion when they read an article, and especially in a case of this kind. Q. Then you have formed some opinion? A. I think so; yes. Q. Have you that opinion now? A. Yes, to a certain extent. Q. Is that such an opinion as would require evidence to remove it? (The court stated that the juror need not answer that question, and the juror did not answer the same; to which ruling and action of the court counsel for the defendant excepted. Counsel for defendant proceeded with the examination as follows:) Q. Is that a fixed opinion? A. Well, it is an opinion that would certainly take evidence to remove it. Q. Then you think it is a fixed opinion at the prevent? A. Yes, I think so. (Counsel for the defendant submitted a challenge to the juror for cause. Counsel for plaintiff cross-examined the juror as follows:) Q. What was the nature of the reports you read, from which you drew this opinion? A. Well, I read the reports that were published in the Oregonian and other papers, and I also read the report of the railroad commission. I read it pretty carefully. Q. Did you read the entire report? A. I think I did. Q. Did you place credence in the report of the facts? A. I certainly placed credence in the report. Q. And from that you formed your opinion? A. Yes, sir.'

The court overruled the defendant's challenge for cause, to which ruling of the court the defendant excepted. Defendant challenged said Craybill peremptorily, and thereby exhausted one of his three peremptory challenges allowed by law.

As to the first exception, it is sufficient to say that the question that was asked and rules out by the court was subsequently answered by Craybill in response to further interrogatories propounded by defendant's counsel; and the challenge for cause, which was denied by the court, and is made the ground of the second exception, is based upon that answer. There is, therefore, nothing remaining of the first exception upon which to base a claim of error. The challenge for cause is...