Stewart v. Texas and Pacific Railway Company
| Decision Date | 23 May 1960 |
| Docket Number | No. 18167.,18167. |
| Citation | 278 F.2d 676 |
| Parties | Mert STEWART, Appellant, v. TEXAS AND PACIFIC RAILWAY COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John D. Raffaelli, Texarkana, Tex., Charles E. Thompson, Atlanta, Tex., for appellant.
Otto Atchley, Texarkana, Tex., Atchley, Russell & Hutchinson, Texarkana, Tex., for appellee, Texas and Pacific Railway Co.
Before RIVES, Chief Judge, and JONES and WISDOM, Circuit Judges.
This appeal is from a judgment overruling the motion of the plaintiff below for a new trial. The action was under the Federal Employer's Liability Act1 for personal injuries received by the plaintiff while an employee of the defendant.
Plaintiff alleged that, while scooping gravel from between ties of the defendant's railroad tracks, he injured his back when he struck with his scoop a hidden stake which had previously been driven into the ground and covered with gravel by other employees of the defendant. Plaintiff alleged that he was treated for his injuries for over a year, and thereafter an operation was performed on his back, but that he had obtained no relief, and that he was totally and permanently disabled.
The defendant denied that the plaintiff's scoop struck the stake with such force as to disable him, and affirmatively alleged that his incapacity, if any, was due solely to some incident outside his work for the defendant, or to some congenital condition. Defendant further alleged unavoidable accident and negligence on the part of the plaintiff.
The jury's verdict was for the defendant.
On voir dire examination, in selecting the jury on October 19, 1959, one of the jurors, Mrs. Bartow Tidwell Palmore, stated she was a friend of Bun Hutchinson, one of the attorneys actively participating in the trial in behalf of the defendant, and that she and Mr. Hutchinson visited in each others' homes. However, she denied that she would be influenced or prejudiced by such friendship, and stated that she could return a fair and impartial verdict. No challenge for cause was made at that time, but juror Palmore's name was struck from the jury list by the plaintiff by a peremptory challenge.
One week later, October 26, 1959, Mrs. Bartow Tidwell Palmore was again on the jury panel for the next case on the docket. In that case, too, Mr. Hutchinson was attorney for one of the parties. On that day on voir dire examination, juror Palmore stated words to the effect that, in view of her friendship with Mr. Hutchinson, there was some doubt in her mind as to whether she could be an impartial juror in a case in which Mr. Hutchinson represented one of the parties, and she was thereupon excused by the court.
Plaintiff filed a motion for a new trial in which he averred that he had, through no fault of his own, been forced to exercise one of his peremptory challenges on juror Palmore when she was really disqualified for cause; that the plaintiff had exhausted all three of his peremptory challenges; that had juror Palmore been excused for cause the plaintiff would have struck the name of Carr Denman from the jury list.2
With defendant's answer to plaintiff's motion for new trial, it filed an affidavit of Mrs. Bartow Tidwell Palmore, the alleged objectionable juror, in which juror Palmore explained that she had not had an opportunity to fully explain the circumstances surrounding her voir dire examination in the case of Williams v. Southwestern Power Electric Company. In her affidavit, juror Palmore stated that she actually meant that her friendship and acquaintance with Mr. Hutchinson might unconsciously affect her decision and verdict without her being aware of it. She stated further that she did not intend to convey to the examining attorney the idea that she would consciously allow her friendship for Mr. Hutchinson to affect her verdict, but that she could not be certain what effect her unconscious mind would have upon her in any given situation. She further stated, in substance, that had she been selected as a juror and had taken an oath to decide the case solely upon the evidence and the law, s...
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