Turnbow v. Kansas City Rys. Co.

• Decision Date: 28 March 1919
• Docket Number: No. 20838.,20838.
• Citation: 211 S.W. 41,277 Mo. 644
• Parties: TURNBOW v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

211 S.W. 41

277 Mo. 644

TURNBOW v. KANSAS CITY RYS. CO.

No. 20838.

Supreme Court of Missouri, Division No. 2.

March 28, 1919.

Remittitur Filed April 4, 1919.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Paul Turnbow, by his next friend, against the Kansas City Railways Company. Judgment for plaintiff for $30,003, and defendant appeals. Affirmed on condition that plaintiff remit $5,003 of the judgment, otherwise to be reversed and remanded for new trial.

Plaintiff, an infant boy, three years of age, sues by next friend to recover for the loss of both feet.

The injury, is alleged to have been caused by the negligence of the defendant in the operation of one of its street cars upon a street crossing ha the city of Independence, Mo.

Trial was had in the circuit court of Jackson county, at Independence, resulting in a verdict and judgment for plaintiff in the sum of $30,000. Defendant has duly appealed.

This is' he second appeal. The opinion upon the first appeal is reported in Turnbow v. Dunham, 272 Mo. at page 53, 197 S. W. 103.

No attack is made upon the sufficiency of the evidence to support a recovery. The evidence in the main is the same as upon the former appeal and is set forth in 272 Mo. at page 53 et seq., 197 S. W. 103. It is therefore unnecessary to restate the same here.

Plaintiff's instruction No. P-1, which was given, is as follows:

"The court instructs the jury that if you believe and find from the evidence that on the 29th day of March, 1912, Paul Turnbow was a child about three years of age, and that the said Paul Turnbow wandered or went upon Lexington street in Independence, Mo., and upon that part thereof east of Union street and between the curb on the south line of Lexington street and the car tracks of the defendant; and if you further believe and find from the evidence that at said time and place the street car in question was approaching a point opposite the place where said child was in said street; and if the jury further believe and find from the evidence that said child approached said car and came in contact therewith, mad his feet and legs were run over by the wheels of the hind truck thereof and crushed and injured, so that it was necessary to amputate his feet, if you believe and find from the evidence that it was necessary to amputate them; and if the jury further believe and find from the evidence that the motorman operating said car saw, or by the exercise of ordinary care could have seen, the said Paul Turnbow in said street and approaching said car and in or approaching a place of imminent peril, if you believe and find from the evidence he was in said street and was approaching said car and approaching a place of imminent peril, in time, by the exercise of ordinary care and with reasonable safety to the passengers on the said car, to have stopped said car and to have prevented the injuries to said Paul Turnbow; and if you further believe and find from the evidence that said motorman could reasonably have anticipated that said child would be likely to approach and come in contact with said car and be injured thereby; and if you further believe and find from the evidence that said motorman did not stop said car, after he saw, or by the exercise of ordinary care could have seen, said child in said street and approaching said car, if you believe and find from the evidence he was in said street and was approaching said car, and that said motorman saw, or by the exercise of ordinary care could have seen, him there, and after he might reasonably have anticipated that said child would approach said car and be injured thereby, if you find that he should reasonably have so anticipated, but continued to run said car over and upon said tracks until the said Paul Turnbow was injured, as aforesaid; and if you further believe and find from the evidence that it was negligence upon the part of said motorman to so continue to run said car, if you believe and find from the evidence he did so continue to run it, and that the injuries to the said Paul Turnbow, if any, were caused by said negligence of said motorman, if any, in so running said earthen your verdict should be for the plaintiff and against the defendant."

Instruction No. C-1, given by the court of its own motion, is as follows:

"The court instructs you that it is your duty, in considering the evidence, deliberating upon and determining the facts in this case, to first decide upon the question as to whether, under all the facts and circumstances, there is or is not any negligence upon the part of defendant's motorman, as defined to you by other instruction. Until this question of negligence has been determined by you, you have no right to take into consideration the nature, character, or extent of the alleged injuries to plaintiff, or the amount, if any, that the plaintiff is entitled to recover, because of such injuries. If the plaintiff is not entitled to recover, that is, if he has not shown to your reasonable satisfaction by the greater weight of the credible testimony upon the question of liability that he should recover at your hands, then you should not and must not in your deliberations at all consider to what extent, if any, ho has been injured.

"Plaintiff was permitted to exhibit the stumps of his legs to you in order that you might see and consider them in determining the nature and extent of his injuries. You should not be influenced by the nature and extent of plaintiff's injuries in deciding whether or not defendant is liable for said injuries, as explained to you in these instructions.

"Neither passion, prejudice, nor sympathy should influence you in any manner in deciding this case; for it is your sworn duty to try this case and decide it according to the evidence and the instructions."

When the case was called for trial, appellant filed a motion to quash the panel of 18 jurors, summoned to appear at the Independence division of the circuit court of Jackson county, for the reason that said jury "has not been drawn, selected, summoned, and qualified in the manner and way provided by law."

The panel thus sought to be quashed was summoned to appear before the said circuit court at the courthouse in Independence, Mo. This seems to have been the established practice in that regard, and had never before been questioned until the motion to quash was filed.

By reading what was said then and what is now said in appellant's brief, we gather the idea that appellant's objection to the panel was that it was not a part of a large panel which had originally been summoned to appear at one of the divisions of the circuit court of said county, there to be distributed in part to each division of said circuit court (including the nine divisions sitting at Kansas City and the one division sitting at Independence) as needed for jury use in the respective divisions (as is provided according to appellant's contention, by sections 7318 and 7323, R. S. 1909).

The court overruled the motion to quash, and thereupon plaintiff's counsel made the following request:

"Mr. Brewster: In view of Mr. Dryden's position that the 18 jurors constituting this present panel are not properly drawn, or drawn according to law, and in view of the fact that the objection has never been made in any other case, and the fact that I represent a minor some six years of age, I am willing to try this case so that there will be no question of any kind left in the record. I therefore ask the court, in view of Mr. Dryden's motion, to send over to Kansas City and have a panel of 18 men called to try this case."

Thereupon, and apparently with an intent to keep the above question out of the case, the court ordered the sheriff to bring 23 jurors from the large panel which had been originally summoned to appear at Kansas City.

After some delay, 23 jurors from the large panel originally summoned to appear before a specified division at Kansas City were brought before the division of the court sitting at Independence.

Thereupon appellant filed a second motion to quash—this time directed at the 23 jurors brought from Kansas City. This second motion to quash was by the court overruled, but no exception was saved by appellant to the court's ruling thereon; the record (bill of exceptions) showing what occurred upon the overruling of the second motion to quash being as follows:

"The Court: The motion is overruled.

"Mr. Dryden (counsel for appellant): I want to make an application for continuance."

Such additional statement of facts as shall become necessary to an understanding of the issues will be made in connection with the points discussed.

Clyde Taylor, of Kansas City, and L. T. Dryden, of Independence, for appellant. John N. Southern, of Independence, and Brewster, Kelly, Brewster & Buchholz, of Kansas City, for respondent.

WILLIAMS, P. J. (after stating the facts as above).

I. Appellant seems now to complain of the court's action in failing to use the original panel of 18 jurors after he had first made an order overruling the motion to quash this panel.

Appellant is certainly now in no position to complain of the action of the court in failing to use the first panel of 18, because this is the exact result (as to that panel) which appellant attempted to accomplish by his first motion to quash. The court (as to this first panel) having in effect done the very thing requested by appellant, appellant should not now be heard to complain.

No exception having been saved to the overruling of the second motion to quash, it follows that the questions arising upon that ruling have not been properly preserved for review.

II. It is contended that the court erred in overruling appellant's first motion for a continuance.

Concerning this point, it is sufficient to say that appellant saved no exception to the overruling of the motion.

III. Neither did the court err in renew fusing to grant a new trial on the ground of...