Theobald v. St. Louis Transit Co.

• Decision Date: 22 November 1905
• Citation: 191 Mo. 395,90 S.W. 354
• Parties: THEOBALD v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

90 S.W. 354

191 Mo. 395

THEOBALD v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

November 22, 1905.

1. JURY—COMPETENCY OF JURORS—BIAS OR PREJUDICE—QUESTION FOR COURT.

The question of the qualification of a juror, us against a challenge for prejudice, should be decided by the court on the facts stated by the juror with reference to his state of mind, and should not be allowed to depend upon the conclusions of the juror himself as to whether or not he could or would divest himself of an admitted prejudice existing against either of the parties, or against the character of the subject-matter in litigation, or against a party as a class and not against him as an individual.

2. APPEAL — QUESTIONS REVIEWABLE — DISCRETIONARY ACTION—RULINGS ON CHALLENGES TO JURORS.

The discretion of the trial court in overruling a challenge to a juror is subject to appellate review where the facts are practically undisputed.

3. SAME—PRESUMPTION OF ERROR.

Under Rev. St. 1899, §§ 3783, 3785, which provide for peremptory challenges and challenges for cause, respectively, the Supreme Court, in reviewing the action of the trial court in overruling a challenge for cause, will not consider whether or not appellant had exhausted his peremptory challenges, but will presume that the action of the court, if erroneous, was prejudicial, without regard to the state of the peremptory challenges.

4. JURY—COMPETENCY OF JURORS—PREJUDICE.

In an action against a street railway for injuries, jurors, one of whom had some years before the trial been thrown off a car and had since that time entertained a prejudice against street railways in general which would influence him in the trial, and the other of whom had a prejudice against defendant which he did not think would influence his verdict, but which "would probably unconsciously bias his opinion," were disqualified for prejudice, although the former stated during his voir dire that he would be governed by the testimony and instructions and believed that he could render an impartial verdict, that he had nothing against defendant, that he could try the case impartially, and that his prejudice had "just" been removed.

5. STREET RAILROADS — OPERATION — NEGLIGENCE —RATE OF SPEED.

A rate of speed of from 8 to 15 miles an hour is not of itself a dangerous speed for a street car to maintain, and, in the absence of further evidence on the subject, it is not negligence for a street car to run at that rate of speed in an outlying district of a city over an unimproved street.

6. SAME—DUTY TO SOUND GONG.

A street railway is not bound to sound a gong at a point where there is no intersecting street, in the absence of knowledge that any one is on the street at that point.

7. SAME—CONTRIBUTORY NEGLIGENCE.

Persons passing over a street and driving on street car tracks are bound to know that street cars are constantly passing over the tracks, and to take proper precautions to get off the tracks in time to avoid a collision.

8. SAME—NEGLIGENCE OF MOTORMAN — FAILURE TO KEEP LOOKOUT—PROXIMATE CAUSE.

A street railway was not rendered liable for the death of a teamster driving on its tracks, caused by a collision of the car with his wagon, by the fact that the motorman in charge of the car momentarily ceased to keep a lookout, where the collision occurred on a dark night, and there was nothing to show that, if the motorman had been constantly looking ahead, he would have been able to discover the presence of the wagon any sooner than he did, or in time to avert the collision, and as soon as he did discover the same he immediately applied the brakes and reversed the power.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by George Theobald against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehmann, Geo. W. Easley, and Glendy B. Arnold, for appellant. Scullin & Chopin and Daniel Dillon, for respondent.

MARSHALL, J.

This is an action for $5,000 damages arising from the death of the plaintiff's 19 year old son, about 6 o'clock in the afternoon on the 20th of January, 1903, caused by one of the defendant's cars colliding with the rear of a wagon driven by the deceased, at a point 70 to 150 feet west of Union avenue on De Giverville avenue, in the city of St. Louis. There was a verdict and judgment for the plaintiff for $5,000, and the defendant appealed.

The negligence charged in the petition is as follows: "Plaintiff's state further that said death was caused by the negligence of defendant's servants on said car in carelessly and negligently managing the same, in falling to sound the bell, or in any other manner warning their son of the approach of the car in failing to keep a watch for vehicles on the track in front of the car, in failing to stop said car after the danger to their son became apparent, or by the exercise of ordinary care would have become apparent, and by running at a high rate of speed." The answer is a general denial, coupled with a plea of contributory negligence, and an averment that at the time and place of the accident it was so dark as to render it impossible for the defendant's motorman to see the deceased upon the track in a place of danger in time, by the use of all the means in his power, to stop the car in time to avoid the accident. The reply was a general denial.

When the panel of jurors was being examined upon their voir dire, it appeared that Rudolph Hartman, Jr., being duly sworn on his voir dire, was examined and answered as follows: "By Mr. Jourdan, Counsel for Defendant: Q. Have you any claims or suits of any character pending against the transit company? A. I had in 1893. I was thrown off a car at Ninth and Geyer avenue, and I still have to wear a belt. Q. That was eight or nine years before the transit company was organized? A. Yes, sir. Q. That was one of Mr. Scullin's lines? A. Yes, sir. Q. What was known as the Union Depot Railway? A. Yes, sir. Q. Now, would the fact that you received an injury resulting from an accident influence you in the trial of this case? A. Yes, sir. (Defendant challenges juror because of prejudice and for cause.) By Mr. Scullin: Well, you could be governed by the testimony and the instructions of the court, couldn't you? A. Yes, sir. Q. You would listen to the testimony? A. Yes, sir. Q. And try to do it impartially? A. Yes, sir. Q. And you believe you could, do you not? A. Yes, sir. By the Court: Do you think that you might be more or less influenced by the prejudice you have against the company? A. No, sir; I have nothing against the transit company, personally. Q. I understand you to answer that you had a prejudice against the company? A. No, sir; I have a prejudice against railroad companies —against street car companies. Q. But have you any against this defendant? A. No, sir. Q. Could you try this case fairly and impartially? A. Yes, sir. Q. Without being influenced by any feeling or prejudice at all against the defendant? A. Yes, sir. Q. It wouldn't mingle in forming your judgment or opinion? A. No, sir. (Challenge overruled.) By Mr. Jourdan: Then what did you mean when you told me, Mr. Juror, that you could not try the case fairly, and that you did have a prejudice? A. If I hear the testimony I will try the case fairly. Q. Well, you have no idea that you would try the case without hearing the testimony, had you? A. No, sir. Q. Well, did I misunderstand you—didn't you tell me on your examination that you could not try this case fairly and impartially; that you had a prejudice growing out of your accident eight or nine years ago, because you were still compelled to wear a belt or something? A. Yes, sir. Q. You told me that? A. Yes, sir. Q. Now, have you still that prejudice? A. No, sir. Q. Well, when was it removed? A That was removed just now. Q. You mean that, although you have had this prejudice since 1893, up to the time you answered my question a moment ago— A. I have not got a prejudice now. I have tried other cases. Q I am not asking you about others, Mr. Hartman. All I want is a fair and impartial jury. You told me you were prejudiced and you couldn't try this case, when I asked you not five minutes ago. Now, you say you have no prejudice, is that true? A. I have no prejudice now. Q. Although it had lasted from the time of your injury up to the time you were called into the box? A. Yes, sir. Q. Now, do you mean to say that you could try this case as you would a lawsuit between two individuals growing out of a breach of contract? A. Yes, sir. Q. You have no feeling either for or against the plaintiff or the defendant? A. No, sir. Q. Your mind is in that condition that you could go into the jury box and try it according to the testimony and the law, and absolutely nothing else? A. Yes, sir. Q. And you have reached that conclusion within the last five minutes? A. Yes, sir. (Defendant renews challenge because of prejudice and for cause. Overruled. To which ruling of the court defendant then and there excepted.)"

Ferdinand A. Bensberg, being duly sworn on his voir dire, was examined and answered as follows: "By Mr. Jourdan, Counsel for Defendant: Q. Do you know of any reason why, if selected as a juror, you could not try this case fairly and according to the testimony and the law? A. I have a sort of a prejudice against the company, a general prejudice. Q. That wouldn't influence you in the trial of the lawsuit, would it? A. No, I don't think it would, but still, a person having a prejudice, that would probably unconsciously bias his opinion. Q. Well, do you feel that by reason of that prejudice your opinion of the testimony or the law might be biased against the defendant? A. No, I would try the cause according to the testimony, but unconsciously my opinion would be biased, and I would give more preference to the testimony of a nonemployé of the company than I would an employé. (Defendant challenges juror because of...