Turney v. United Rys. Co. of St. Louis

• Citation: 135 S.W. 93,155 Mo. App. 513
• Parties: TURNEY v. UNITED RYS. CO. OF ST. LOUIS.
• Decision Date: 21 February 1911
• Court: Court of Appeal of Missouri (US)

135 S.W. 93

155 Mo. A. 513

TURNEY v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

February 21, 1911.

1. JURY (§ 53)—QUALIFICATION OF JURORS— SERVICE UPON PRIOR JURY.

Rev. St. 1909, § 7342, provides that one who has served on a jury in any court within 12 months shall be excused on challenge for that cause, and section 7353, in the same chapter and article, permits courts of record in cities with over 100,000 inhabitants to direct from time to time the number of jurors to be summoned and how long they shall serve, and to make all proper rules relating to jury service. Held, that a juror summoned for jury service in St. Louis city for one week, and who had served on one panel for such week, but at no other time during the year next preceding such week, was not subject to challenge under section 7342.

2. RAILROADS (§ 372) — INJURIES — NEGLIGENCE—EXCESSIVE SPEED.

A street car company may operate its cars on a private right of way at whatever speed it wishes, provided it does not endanger passengers, and circumstances do not require the exercise of ordinary care as to speed, to protect persons who may be on the tracks.

3. RAILROADS (§ 370) — INJURIES — NEGLIGENCE—FAILURE TO GIVE SIGNALS.

A street car company may operate its cars upon a private right of way without sounding a gong or signal of approach, unless special circumstances require it.

4. RAILROADS (§ 348)—INJURIES—ACTIONS— SUFFICIENCY OF EVIDENCE.

Evidence, in an action for injuries by the collision of a street car operated on its own right of way with an automobile in which plaintiff was, held to show that the avenue at the crossing of which the collision occurred was a public thoroughfare in St. Louis city, and was traveled at the point of the collision.

5. RAILROADS (§ 316) — INJURIES — NEGLIGENCE—EXCESSIVE SPEED.

Defendant's double tracks, constructed on its own right of way, crossed C. avenue, a public traveled street in a large city, running north and south; the west-bound cars running on the north track. The cars are obscured upon approaching the avenue by buildings erected within 10 feet of the rails on either side, and the tracks approaching it from the east curve sharply, so that cars cannot be seen by one standing on the north rail of the track in the avenue until within 65 to 100 feet of the street, and the same condition exists as to west-bound cars. Held, that the exercise of ordinary care required that the cars be operated at a reasonable speed upon approaching the street crossing, so that the motorman could control the car to protect persons at the crossing.

6. RAILROADS (§ 350)—INJURIES—ACTIONS— JURY QUESTION — NEGLIGENCE — EXCESSIVE SPEED.

Where the car which collided with the plaintiff's automobile at such crossing was at the time running between 25 and 30 miles an hour, the question of whether the speed of the car was excessive, so as to make it negligence, was for the jury, in an action for resulting injuries.

7. RAILROADS (§ 312)—INJURIES — NEGLIGENCE—SIGNALS.

The exercise of ordinary care requires the giving of warning by gong or otherwise, in crossing a street, by a street car operated on its own right of way, where the view of the street car in approaching is considerably obscured.

8. EVIDENCE (§ 147) — COMPETENCY — NEGATIVE TESTIMONY.

Evidence that witnesses, in a position to hear the gong if sounded, did not hear the sounding of a gong by a street car at a street crossing is admissible to prove that the gong was not sounded; its weight being for the jury.

9. RAILROADS (§ 350)—INJURIES—ACTIONS— JURY QUESTIONS — CONTRIBUTORY NEGLIGENCE.

In an action for injuries by the collision at a crossing of a street car operated on its own right of way with an automobile in which plaintiff was, whether plaintiff exercised due care for her own safety held a question for the jury.

10. NEGLIGENCE (§ 93) — IMPUTED NEGLIGENCE—NEGLIGENCE BY COMPANION.

The negligence of the driver of an automobile in which plaintiff, a young girl, was, when it was struck by a street car, could not be imputed to plaintiff, where the automobile was owned by her aunt, and the driver was her cousin; she being in effect his guest.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Bessie Turney against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest and Glendy B. Arnold, for appellant. Robert L. McLaran, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff through the alleged negligence of defendant in propelling its street car upon her. Plaintiff recovered, and defendant prosecutes the appeal.

The first argument advanced for a reversal of the judgment relates to the ruling of the court in denying its peremptory challenge to a juror, Moses Cohn, who had been regularly summoned for jury service for the period of one week, as is usual in the St. Louis circuit court, and had served as a juror on one panel during such week, but at no other time during one year next prior to the week mentioned. The peremptory challenge was made on the ground that the juror was disqualified perforce of the statute (section 7342, R. S. 1909), which provides, substantially, that any person who has served on any jury in any court of the state within 12 months next preceding shall be excused by the court, if challenged for that cause. On this question the trial court expressed its views in writing as follows: "On his voir dire, this juror admitted that he had served on a prior jury in the same room, in the same week, and during the service which he was then absolving, according to his regular summons. The challenge `for cause' was overruled; defendant saved an exception. Defendant relies entirely upon the case of Williamson v. Transit Co., 202 Mo. 345, 355, 365, et seq., 100 S. W. 1072, while plaintiff denies the application of that case and points to certain features which are claimed to differentiate the two cases; and further asserts that what was said in the Williamson Case is practically obiter dictum. It is the effort of the law to furnish in civil cases a panel of 18 qualified men, from which either party may strike three, not because they are disqualified, but for any reason deemed sufficient, and peremptorily. Such is the reasoning of our appellate courts as indicated in the leading cases of Theobald v. Transit Co., 191 Mo. 395, 416, 90 S. W. 354, and Billmeyer v. Same, 108 Mo. App. 6, 82 S. W. 536, and that reasoning seems conclusive. In my opinion, the qualification of the juror Cohn must be determined upon the facts appearing in this case, and the entire provisions of article 5, c. 64, Rev. St. 1909, on `Juries in cities with over 100,000 inhabitants.' Section 7353 of that article provides [inter alia]: `Time and length of service of juror: Each of said courts hereinbefore referred to may direct, from time to time, the number of jurors to be summoned for said court, and how long they shall be summoned before their attendance shall be required, and how long they shall serve, and may make all rules and orders by it deemed proper touching the jury service of the court, not inconsistent with the provisions hereof, and may enforce the same,' etc. This section was not before the Supreme Court, nor considered by it, apparently, in the decision of the Williamson Case; neither was such consideration called for, because that case involved the direct question only regarding a juror who had served at another term, but during the preceding year. Sections 7342-7353, being not only in pari materia, but parts of the same act, must needs be construed together, and from the pregnant terms of each the legislative intent must be gathered. We cannot place so low an estimate upon legislative intelligence as to assume that its members were unfamiliar with the immemorial custom of summoning jurors in this city for service by the week, or that they intended the issuance of fresh venires in the midst of the jury trials of a week, whenever it might suddenly happen that even the last discarded juror had been sworn upon a panel. It could not have been their conscious purpose to afford a wary litigant, unwilling for some reason of his own to meet an adversary ready for the assertion of his supposed rights, an oportunity in the later days of each week to paralyze the activity of the trial court, and thus force an unwilling and unjust continuance. To me it seems plain beyond controversy that when the Legislature granted (e. g., recognized) the power to the trial courts of this city to determine as to jurors `how long they shall serve,' they employed those terms not with reference to the length of service in one case, but subjected them to all service that might be required of them during the term fixed, whether involving the determination of one case or a dozen. Hence the words of section 7342, `who has served on any jury in any court of this state within twelve months next preceding,' derive a distinct meaning as illuminated by the later section, and must be held to have reference to such a `service' as the court by its order shall have fixed for the time being. This construction will also accord to these enactments some potency towards the correction of evils at which they were manifestly aimed. Upon the one hand, it was felt that to require a week's service as juror in either the civil or criminal divisions of our circuit courts oftener than once a year was the imposition of too great a burthen upon the average citizen. Upon the other hand, it seemed desirable to more completely avoid the dangers of having the lists filled with either regular jurors or `talesmen' who at one time made a profession of that sort of `service.' Feeling that the Williamson Case in no wise decides or precludes the point raised in this case, and that when considered as a new contention it is not well made, I must refuse to disturb the verdict."

In the views of Judge...